TREATISE 


CIVIL   JURISDICTION 


JUSTICES  OP   THE  PEACE; 

TO    WHICH    ARE    ADDED, 

OU  TLINES  OF  THE  POWERS  AND  DUTIES 


COUNTY  AND  TOWN  OFFICERS 


STATE   OF   NEW  YORK 


ADAPTED    TO 


THE  STATUTES  AND  THE  CODE  OF  PROCEDURE. 


CONTAINING    DIRECTIONS    AND    PRACTICAL    FORMS    FOR   EVERY    CIVIL 

CASE    WHICH    CAN    ARISE    BEFORE    A    JUSTICE    UNDER 

THE    STATUTES    AND    THE    CODE. 


BY  THOMAS  W.  WATERMAN, 

COUNSELLOR    AT    LAW. 


NEW  YORK: 

BANKS,  GOULD.  &  CO.,  144  NASSAU  STREET. 

ALBANY  : 

GOULD,  BANKS  &  GOULD,  104  STATE  STREET. 

1849. 


T 
103 

i«49 


u;3/3?j 


Entered  according   to  the  Act  of  Congress  in  the  year  eighteen  hundred  and 

forty-nine, 

BY    BANKS,    GOULD    &    CO. 

in  the  Clerk's  Office  of  the  District  Court  of  the  Southern  District  of  New  York. 


AI.  KXAM>ER    B.     WOULD,     PIl  INTER, 
No.  114  Nassau  Blrcet,  New  Vnrk. 


c? 


5 


TO    THE 

HON.    THOMAS    G.    WATERMAx>J, 

THIS    WORK    IS    INSCRIBED 
AS     AN     HUMBLE     TOKEN, 

NO     LESS     OF     PROFESSIONAL      OBLIGATION 

THAN    OF    FILIAL    GRATITUDE, 

BY    HIS     SON    AND     FORMER     PUPIL, 

THE  AUTHOR. 


671538 


PREFACE. 


In  the  progress  of  an  age  remarkable  for  a  spirit  of  whole- 
some reform,  but  few  events  of  deeper  interest  to  the  masses, 
have  occurred,  than  those  in  our  own  State,  consequent  upon 
the  re-modelhng  of  our  constitution. 

We  have  to  record  no  brilhant  miUtary  achievement  with 
the  attendant  horrors  and  evils  of  war ;  nor  have  we  been  wit- 
ness to  any  violent  and  bloody,  though  successful  revolution. 
Our  triumph  has  been  a  moral  and  intellectual  triumph,  ob- 
tained by  the  steady  advancement  of  our  people  in  virtue  and 
mental  culture. 

Nothing  could  be  more  gratifying  to  the  friends  of  human 
rights  than  the  spontaneous  call  of  our  people  for  a  reform 
which  our  exigencies  so  much  demanded.  It  showed  that  the 
intelligence,  spirit,  discernment  and  independence  of  the  com- 
munity, Avere  not  behind  the  times,  and  gave  strong  encourage- 
ment for  the  future. 

The  re-modelhng  of  our  constitution,  has  led  to  the  estab- 
lishing our  judicial  system  upon  a  republican  footing  adapted 
to  the  simplicity  of  our  institutions.  The  practice  of  our  courts, 
has  undergone  a  radical  and  salutary  change — a  change  based 
upon  utility,  economy,  despatch,  and  a  just  regard  for  the  true 
rights  of  parties.  By  it,  we  have  set  a  proud  example  to  the 
world,  which  our  sister  states  are  already  beginning  to  imitate. 
Long  may  its  light  illumine  our  halls  of  justice,  a  beacon  of 
hope  and  imitation  to  those  less  favored,  until  its  spirit  shall 
have  penetrated  every  civilized  community. 

The  recent  changes  in  our  prnctice  and  pleadings  have  ex- 
tended to  Courts  of  Justices  of  the  Peace,  no  less  than  to  the 
higher  tribunals.     Magistrates  have  hitherto  been  greatly  per- 


vi  PREFACE. 

plexed  in  determining  how  far  the  changes  operate  to  do  away 
the  old  order  of  things  in  these  courts  ;  and  it  is  not  saying 
too  much  to  declare  that  the  administration  of  justice  in  these 
primary  tribunals  has  been,  in  consequence  seriously  impeded. 

It  is  to  remedy  this  inconvenience  that  the  present  work  is 
oftered  to  the  public ;  designed  as  it  is,  to  present  under  proper 
heads,  with  suitable  forms  and  instructions,  all  the  law  appli- 
cable to  Justices'  Courts  in  civil  cases. 

None  of  our  courts  have  the  same  immediate  interest  to  the 
community  at  large,  as  those  of  Justices  of  the  Peace.  Being 
primary  tribunals  of  great  simplicity  they  are  the  immediate 
dispensers  of  justice  to  the  mass  of  the  population,  in  nearly 
all  the  ordinary  transactions  of  life. 

In  proportion  Lo  the  importance  of  these  courts,  have  been  the 
responsibilty  and  difficulty  of  my  task — a  task,  which  though 
it  has  proved  deeply  interesting,  has  not  been  accomplished 
without  severe  labor.  The  varied,  and  complicated  nature  of 
the  subjects  treated,  no  less  than  the  great  changes  which  have 
recently  been  made  as  well  in  our  statutes  as  in  our  system  of 
practice  and  pleading,  have  very  nmch  enhanced  the  difficulty 
and  responsibility  of  the  undertaking. 

Witli  an  anxious  desire  to  satisfy  an  universal  want,  no  ex- 
ertions have  been  spared  to  render  the  work  practically  useful. 
That  it  is  entirely  free  from  errors  could  scarcely  be  expected  ; 
but  if  anything  can  be  effected  by  patient,  close,  and  laborious 
scrutiny  and  research,  I- think  I  may  safely  infer  that  it  will  be 
found  substantially  accurate.  Dining  its  progress  through  the 
press  important  alterations  and  improvements  have  suggested 
themselves  to  my  mind,  which,  if  the  work  should  be  favora- 
bly received,  can  be  supplied  in  a  subsequent  edition. 

Asking  in  advance  for  the  work,  the  indulgence  which  I  feel 
it  needs,  I  submit  it  to  llir-  pubhc. 

'J^iii:  Author. 

Nnr  York,  N".  ^  Nhshou  Strrcl,  Aii<^.  IQlJi,  18411. 


CONTENTS. 


PART     FIRST. 

CHAPTER  I. 

OF    THE    JURISDICTION    OF   JUSTICES    OF   THE    PEACE. 

Page. 

Of  Justices'  Courts,                 .                 .                 .                 .  i 

Wliat  relates  to  the  Justice  personally,          ...  2 

Of  the  parties  who  may  sue  and  be  sued,              .                .  .5 

The  amount  in  controversy,            ....  7 

CHAPTER  II. 

THE  FORM   AND    GENERAL   PRINCIPLES  OF    SUITS. 

Abolishment  of  forms  of  action,              .                ,                .  .9 

Actions  cognizable  by  Justices'  Courts,          ...  9 

Law  of  contract,                      .                .                .                ,  .10 

Doctrine  of  jiartnership,                   .                 .                 .                 .  ]5 

Of  the  sale  and  mortgage  of  personal  property,    .                .  .20 

Warranty  on  sale  of  goods,             ....  24 

Definition  and  nature  of  bonds,               .                 .                 .  .28 

Law  in  relation  to  promissory  notes,               ...  29 

Matters  of  account,                  .                 .                 .                 .  .39 

Law  in  relation  to  interest  on  money  and  accounts,        .                 ,  43 

Of  direct  injury  to  personal  property,     .                 .                 .  .44 

Of  direct  injury  to  real  property,     ....  45 

Of  indirect  injuries,                   .                 .                 .                 .  .47 

Law  in  relation  to  statute  penalties,                •                 ,                .  49 

Actions  not  cognizable  by  Justices'  Courts,           ..                 .  .50 

Of  liabilities  created  by  statute  other  than  a  penalty  or  forfeiture,  51 

CHAPTER  III. 

OF   THE   COMMENCEMENT    OF    SUITS. 

The  manner  in  which  suits  may  be  instituted  before  a  Justice,  .       53 

Definition  of]  and  various  kinds  of  process,                      .                 .  52 

Definition  and  nature  of  summons,          .                 .                 *  ^53 


VIU 


CONTENTS. 


Distinction  between  a  long  and  a  short  summons, 

Definition  of  warrant, 

III  wliat  actions  process  by  warrant  applicable, 

Steps  preliminary  to  obtaining  a  warrant. 

Manner  of  arrest, 

Of  process  by  attachment, 

Application  for  attachment,  how  made, 

Distinction  between  a  long  and  a  short  attachment, 

Attachment,  how  executed,  .  -     . 

General  rules  applicable  to  process, 


Page. 

54 

.   56 

57 

.   58 

60 

.   61 

62 

.   65 

66 

.   71 

CHAPTER  IV. 

APPEARANCE    OF    THE    PARTIES. 


When  the  parties  are  to  appear, 
How  the  parties  are  to  appear. 
Of  appearance  by  attorney, 
Appearance  by  guardian, 


75 
76 
77 

77 


CHAPTER  V. 


OF   THE    PLEADINGS    IN    A    SUIT. 

Definition  of  pleading,     .... 

General  rules  of  pleading,       .  .  . 

At  what  time  parties  must  plead,  . 

Nature  of  pleadings  in  a  Justice's  Court,  and  the  kinds  thereof, 

Statement  of  the  cause  of  action, 

Variance,  ..... 

Amendment  of  pleadings. 

Of  various  defences,  .... 


80 
80 
83 
84 
85 
87 
91 
91 


CHAPTER  Vi. 

ADJOURNMENTS. 


Adjournment  on  motion  of  the  Justice, 
On  motion  of  the  plaiiitid", 
On  motion  of  the  (]ef(;ndant. 
Second  or  furlher  adjournment, 
General  ruicH  ol'  adjournments. 


109 
100 
111 
114 
115 


CriAPTKIl  VII. 
OF  iMJOf  i:i;ni.N(;H  aii'i;h   ihhim;  .joinkd,  anii  riiKPAiiATOHY  to  'I'iuai.. 


FifHl  Hleji  in  preparation  for  tri;il, 
Attendance  of  witncKHCH,  liow  j)rocnr(Ml 


]17 
117 


CONTENTS. 


IX 


Definition  and  nature  of  subpoena, 

Subpoena,  how  served,  .... 

Penalty  lor  neglect  to  obey  subjjoena,  how  enforced, 

Nature  of  attachment  to  compel  attendance  of  witnesses, 

Attachment  against  witness,  how  executed, 

Fine  for  refusal  of  witness  to  attend  and  testify, 

Fine,  how  enforced  against  witness, 

Of  the  commission  to  examine  foreign  witnesses, 

When  and  how  jury  obtained, 

Qualifications  of  jurors, 

Method  of  summoning  jury,  .  .        " 


Page. 
117 
119 
120 
121 
122 
122 
124 
125 
130 
131 
133 


CHAPTER  VIII. 


Of  the  nature  of  evidence. 

General  rules  of  evidence. 

Who  are  competent  witnesses, 

Evidence  on  matters  of  record, 

Evidence  on  matters  not  of  record, 

Proof  of  written  instruments  and  private  writings, 

Acknowledgments, 

Books  of  account, 


136 
137 
142 
147 
148 
151 
152 
162 


CHAPTER  IX. 


OF    TRIAL  AND    ITS  INCIDENTS. 


Definhion  and  nature  of  trial, 

The  swearing  of  witnesses, 

Effect  of  deficiency  of  proof. 

Drawing  and  swearing  of  jury, 

Challenge  to  the  array^ 

Challenge  to  the  folls^ 

Manner  of  conducting  trial, 

Examination  of  witnesses, 

What  evidence  may  be  given  by  a  witness, 

Of  impeaching  a  witness, 

Of  the  Justice's  discretion  in  admitting  or  rejecting  testimony 

Of  weighing  the  testimony  of  witnesses, 

Of  agreeing  upon  and  rendering  a  verdict. 


165 

. 

.  166 

. 

167 

.  167 

. 

168 

. 

.  169 

. 

171 

. 

.  172 

. 

174 

. 

.  175 

stimony.  . 

178 

.  ISO 

,       , 

186 

CHAPTER  X. 

OF    JUDGMENTS,    AND    FILING    TRANSCRIPTS    THEREOF. 

Definition  and  nature  of  judgment, 


188 


X  CONTENTS. 

Page. 

Judgment  of  discontinuance,          ....  188 

Judgment  of  nonsuit,                .....  191 

Judgment  by  confession,                 ....  193 

Transcripts  of  Judgments,     .....  197 

Damages,                         .....  198 

Costs,  .  .  .  .  .  .201 

Fees  of  officers,  witnesses,  and  jurors,          .                .                .  203 


CHAPTER  XI. 

EXECUTION, 

Definition  and  nature  of  execution,         ....  208 

Execution  when  issued,                  ....  209 
Endorsement  on  execution,     .                 .                 .                 .                 .211 

Renewal  of  execution,                    ....  212 

Of  issuing  a  furtlier  execution,               ....  213 

When  part}'-  may  be  arrested  on  execution,                  .                .  214 

Of  the  service  and  return  of  an  execution,             .                 .                 .  215 

Execution  where  tlie  transcript  of  a  judgment  is  filed,                  .  223 

Of  the  liability  of  the  constable  and  his  sureties  on  execution,               .  224 

CHAPTER  XII. 

OF   THE    REMOVAL    OF   CAU.SES    TO    THE    COUNTY    COURT,  BY    APPEAL. 

The  court  to  which  an  appeal  must  be  taken,                .                 .  228 

When  and  liow  the  appeal  must  be  made,             .                 .                 .  228 

Steps  by  the  appellant  to  stay  execution,                       .                 .  230 

Of  the  Justice's  return,             .....  232 

Proceedings  and  costs  in  appellate  court,      .                 .                 .  233 

CHAPTER  XIII. 

MISCELLANEOUS    PROVISIONS    AND    PROCEEDINGS. 

Power  of  courts  in  cases  of  contempts,                  .                .                .  235 

When  Justices  of  the  Peace  may  punish,  as  for  a  contempt,       .  235 

The  punLslimcnt  for  contempt,  and  when  and  how  enforced,                 .  236 
Proceedings  against  witnesses  or  jurors  for  non-attendance  or  refusal 

to  Kcrvc,               ......  239 

Surety  for  tlir:  peace,                      ....  243 

Of  weightH  :uid  measures,                         ....  248 

Computalioii  of  time,                      ....  250 

Of  the  JuKlicc's  docket,           .....  251 

Of  the  dopofiitc  of  books  and  j)apcrs  with  the  town  clerk,           .  255 

Of  Ihc  abatement  of  units  by  death,      ....  2i;6 


CONTENTS.  X  i 
CHAPTER  XIV. 

OF    ARBITRATIONS. 

Page. 

Definition  of  arbitration,                ....  257 

Who  may  submit  matters  in  controversy  to  arbitrators,         .                 .  257 

Wliat  claims  may  be  submitted  to  arbitration,              .                 .  258 

Duty  of  arbitrators,                 .                 .                 .                 .                 •  258 

Arbitrators,  how  sworn,                  ....  258 

Witnesses,  how  compelled  to  appear  before  arbitrators,  and  swearing 

of  witnesses,         ......  259 

What  is  necessary  to  entitle  an  award  to  be  enforced,                   .  260 

Submission  to  arbitrators,  how  made,     ....  260 

Revocation,  how  made,                  .                 .                 .                 .  261 

Consequences  of  revocation,                   .                 .                 .                 .  261 

What  is  necessary  to  constitute  an  award,  .                 .                 .  262 

Effect  of  submission  and  award,             ....  264 

Award,  how  confirmed,                  ....  265 

Award,  how  vacated,             .....  265 

Award,  how  modified  or  corrected,                 .                 .                 .  266 

Proceedings  by  the  court,  upon  the  award  being  confirmed  or  modified,  266 

Proceedings  on  an  appeal  from  an  order,  vacating  an  award,               .  267 


CHAPTER  XV. 

OF   MASTERS,    SERVANTS,    AND    APPRENTICES. 

The  relation  of  master  and  servant,  .  .  .  269 

Apprentices,  ....••     274 

When,  and  how,  an  infant  may  be  bound  out  as  an  apprentice  by  the 
consent  of  the  mother,  ....  275 

When,  and  how  an  infant,  who  has  no  parent  living,  or  none  in  a  legal 
capacity  to  give  consent,  may  bind  himself,  or  herself,  as  appren- 
tice,     .  .  .  .  .  .  .276 

When  overseers  of  the  poor  are  authorized  to  bind  out  a  child,  .  276 

Assignment  of  contract  of  apprenticeship,  .  .  .     278 

Steps  to  be  taken  v/hen  a  person  lawfully  bound  to  service,  refuses  to 

serve,  ...•••  279 

Steps  to  be  taken  when  the  apprentice  is  guilty  of  any  misdemeanor 
or  ill  behavior,     ......     280 

Proceedings  by  apprentice  ag.;inst  master,  for  cruelty,  misusage,  or  vio- 
lation of  the  contract  of  apprenticeship,  .  .  284 
Complaint  against  apprentice  by  master,  where  money  is  paid  with 
the  apprentice,     ....-•     287 

Assio-nment  of  contract  of  apprenticeship  upon  the  death  of  the  mas- 
ter,   287 


xii  CONTENTS. 

CHAPTER  XVI. 

DUTIES    OF   JUSTICES    OF    THE    PEACE    IN    REFERENCE    TO    THE    INTERNAL 
POLICE    OF    THE    STATE. 

Page. 

Of  the  relief  and  support  of  indigent  persons,                        .                 .  288 

Of  beggars  and  vagrants,               ....  299 

Of  disorderly  persons,              .....  308 

Of  the  support  of  bastards,          .                .                .                 .  313 

The  safe  keeping  and  care  of  lunatics,                    .                 .                 .  334 

The  care  of  habitual  drunkards,  ....  342 

Of  profane  cursing  and  swearing,           ....  347 

Of  the  disturbance  of  religious  meetings,      .                 .                 .  352 

Of  the  observance  of  Sunday,                ....  358 

Of  excise  and  the  regulation  of  taverns  and  groceries,                 .  364 

Of  the  destruction  of  wolves  and  other  noxious  animals,       .                 .  374 

Of  hawkers  and  pedlars,                 ....  376 

Proceedings  for  the  draining  of  swamps,  marshes,  and  other  low  lands,  380 

Preservation  of  piiblic  health,                 ....  383 

CHAPTER  XVII. 

LANDLORD    AND    TENANT. 

The  relation  of  landlord  and  tenant,            .                .                .  385 
Proceedings  by  landlord  to  dispossess  tenant  after  the  expiration  of  his 
term,                     .                .                 .                .                .                .393 

Proceedings  to  turn  tenant  out  for  non-payment  of  rent,              .  402 

Proceedings  where  premises  are  deserted  by  tenant,             .                 .  409 

Proceedings  in  cases  of  forcible  entry  and  detainer,      .                .  410 

CHAPTER  XVIII. 

OF    HIGHWAYS. 

General  principles  of  law  applicable  to  highways,                .                .  417 
The  duties  of  overseers  ^vilh  regard  to  the  performance  of  labor  upon 

highways,  .                  .                  •                  .                  .               _  .  420 

Of  the  obstruction  of  highways  and  encroacliments  thereon,                .  424 

Of  laying  out  public  roads,             ....  427 

Ilcguhition  of  public  stages,                   ....  441 

CHAPTER  XIX. 

OK   JU.STICEH,    AND    OlIIEU    INFEHIOH    COURTS    IN    CITIES. 

Organization  of  tlic  New  York  Marine  Court,   *          .                 .  446 

Jurisdiction  of  tlic  Marine  (Joint,           ....  450 

Fees  allowed  in  actions  and  proceedings  in  tlu;  Marine  Court,  .  452 


CONTENTS. 


XUl 


Naturalization  of  foreigners, 

Pleadings  in  the  Marme  Court,  and  appeal  from  a  judgment  therein, 

The  Justices'  Courts  in  the  city  of  New  York,     . 

Of  Justices  in  the  city  of  New  York, 

Justices'  Courts  in  the  city  of  Brooklyn, 

The  Justices  Court  of  the  city  of  Albany,' 

The  Justices'  Court  of  the  city  of  Troy, 

The  Justices'  Court  of  the  city  of  Hudson, 

Application  of  the  Code  to  the  foregoing  subjects. 


Page. 
455 

458 
459 
461 
467 
468 
471 
473 
474 


PART    SECOND 


CHAPTER  XX. 


OF   COUNTY   AND   TOWN    OFFICERS. 


Sheriff,                    .... 

.     476 

County  Judge,                 .... 

480 

County  Clerk,          .... 

.     483 

Surrogate,                       .... 

485 

District  Attorney,    .... 

.     487 

County  Treasurer,        .... 

488 

Coroners,                  .... 

.     492 

Superintendents  of  the  Poor, 

495 

Commissioners  of  Loans, 

.     499 

Notaries  Pubhc,              .... 

505 

Sealer  of  weights  and  measures. 

.     507 

Supervisor,     ..... 

510 

Town  Clerk,            .... 

.     518 

Assessors,                         .... 

.     .              523 

Collector,                  .... 

.     529 

Constables,                      .... 

539 

Commissioners  of  Highways, 

.     544 

Overseers  of  Highways, 

551 

Overseers  of  the  Poor, 

.     555 

Town  Superintendent  of  Common  Schools, 

563 

Pound  Masters,        .... 

.     572 

Town  Auditors, 

573 

Commissioners  of  Excise, 

.     573 

Fence  Viewers,                .... 

575 

Compensation  of  county  and  town  officers, 

.     582 

County  charges,                .... 

596 

Town  charges,         .                .                ,                .                . 

.     597 

XIV 


CONTENTS 


CHAPTER  XXI. 

OF   TOWNS    AND   TOWN    MEETINGS. 


Towns, 

Town  meetings, 

Mode  of  conducting  town  meetings, 


Page. 

599 

.     600 

603 


CHAPTER  XXII. 


OF    SCHOOL    DISTRICTS. 


Of  the  formation  and  alteration  of  school  districts,                 .  .     605 
Of  the  powers  of  school  district  inhahitants,  and  of  tlie  choice,  duties 

and  powers  of  school  district  officers,         .                 .                 .  607 

Of  the  duty  of  trustees  of  school  districts,             .                 .  .     613 

The  assessment  and  collection  of  school  district  taxes,                   .  615 

Of  the  annual  reports  of  the  trustees,  their  duties  and  liabilities,  .     622 

School  district  libraries,                  ....  625 

Miscellaneous  provisions  connected  with  the  foregoing  subjects,  .     628 


CONTENTS    OF    APPENDIX 


THE    PROVISIONS    OF    THE    STATUTES    AND   THE     CODE    APPLICABLE    TO  JUS- 
TICES'   COURTS. 

Of  the  jurisdiction  of  Justices' Courts,                     .                 .                 .  633 

Of  the  commencement  of  suits,  and  the  service  and  return  of  process,  634 

Of  the  form  of  civil  actions,          ....  637 

The  time  of  commencing  actions  in  general,         .                .                .  637 

General  provisions  as  to  the  time  of  commencing  actions,             .  638 

Of  the  parties  to  civil  actions,                 ....  639 

Of  the  appearance  of  parties,          ....  640 

Of  i)lca(liiigs  and  of  set  off,     .....  641 

Of  adjournments,            .....  644 

Of  compelling  the  attendance  of  witnesses,           .                .                .  645 

Examination  of  witnesses.             ....  646 

Exaininaiion  of  parties,           .....  646 

AdmirisioM  or  inspection  of  writings,               .                 .                 .  647 

Of  the  trial  of  issues  of  fact  and  incidents  thereto,                 .                 .  647 

Of  judginciitH,  and  filing  tranBcri])t8  thereof,                  .                 .  649 

Of  executions,          ......  650 

Of  appeals,                       .....  653 

Of  tlie  fees  ofoflicers,  and  of  witncis^fs  juid  jurors,                  .                 .  654 

General  provisions  concerning  Justices'  Courts,  and  proceedings  therein,  656 


CONSTITUTION 

OF    THE 

STATE  OF  NEW-YORK; 

aboptclr    NoBcmbcr  3,   1846. 


TOGKTHER    WITH 


COPIOUS   MARGINAL  AZOTES. 


[Wherever  the  same  or  a  similar  provision  exists  in  the  old  Constitution,  a  mar- 
ginal reference  is  made  to  such  provision,  and,  in  most  cases,  alterations  are 
pointed  out  by  note,  or  by  printing  ihem  wiihin  quotations. 

The  other  ciiati'ons  refer  to'statutes  which  have  been  incorporated  into  this  Con- 
stitution, or  which  relate  to  similar  subjects ; — to  executive,  legislative  and 
judicial  opinions  upon  parts  of  the  old  Constitution  which  are  still  retained; 
and,  to  reports  and  the  action  of  the  Legislature,  leading  to  the  history  of 
various  new  provisions,  and  thereby  tending  perhaps  to  elucidate  their  mean- 
ing. 

These  references,  though  not  pretended  to  be  complete,  it  is  hoped  may  be  con- 
venient and  useful.] 


We,  the  People  of  the  State  of  New- York,  grateful  to 
Almighty  God  for  our  freedom  ;  in  order  to  secure  its  bless- 
ings, DO  establish  this  Constitution. 

ARTICLE  I. 

Section   1.     No  member  of  this  State  shall  be  disfranchised,  or  No  person  to  be 

deprived  of  any  of  the  rights  or   privileo-es,  secured   to   any  citizen  Art.'r"^  V.^  Ass'y 

thereof,  unless  by  the  law  of  the  land,  or  the  judgment  of  his  peers,  jour.  '29,  p.  337. 

Sections.        The  trial   by  jury,  in  all   cases  in  which  it  has  been  Trial  by  Jury, 

heretofore    used,  shall  remain  inviolate   forever.     "  But  a  jm-y  trial  Art.  7,  §2— 6  Hill, 

may  be  waived  by  the  parties  in  all  civil  oases,  in  the  manner  tojpe  ^vgjjj  453''  fg 

prescribed  by  law  "  Wend.  449.     2 

Section  3.     The  free  exercise  and  enjoyment  of  religious  profes-  {^•^^'•,^l^-    Ass'y 

sion  and  worship,  without  discrimination  or  preference,  shall  forever         '      .' 

be  allowed  in  this  State  to  all  mankind  ;  "  and  no  person  shall  be  ren-  of  reUKi'(?us'wor- 

dered  incompetent  to  be  a  witness  on  account  of  his  opinions  on  mat-  ship.    Art.  7,  §  3. 

ters  of  religious  belief ;"  but  the  liberty  of  conscience  hereby  secured  2  R.  S.  p.  408,  § 

shall  not  he  so  construed  as  to  e.xcuse  acts  of  licentiousness,  or  iustifv  §^;^   ^^'/Si?"'  ^^' 

•  .      4      -.u   <u  r  .        r  «i  •     f.    .  2  Cow.  432,  n.  a. 

practices  inconsistent  with  the  peace  or  safety  ol  this  btate.  ge„  jour.  '23  p. 

Section  4.     The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  360.    Ass'yJour. 

suspended,  unless  when,  in  cases  of  rebellion  or  invasion,  the  public  '^'''  P'  ^' 

safety  may  require  its  suspension.  Habeas  Corpus. 

Section    5.     Excessive   bail  shall   not  be   required,  nor   excessive  „  -i   '      ■  u 

~  .  J  ,     ,,  ,        J  ,  •   1  .     u     ■    T    .     1  Ball,  puni.sh- 

fines  imposed,  nor  siiall  cruel  and  unusual  punishments  be  mnicted,  rnenis  and  deten- 

"  nor  shall  witnesses  be  unreasonably  detained."  tion  of  witnesses. 

Section  (>.     No  person  shall  be   held   to   answer  for  a  capital  or  1  J^- S- p.  94,  §  17. 

otherwise  infatnous  crime  (except  in  cases  of  impeachment,  and  in  pT'^f    \1^^J^ 

cases  of  the  militia,  when  in  actual  service  ;  and  the  land  and  naval  Ait.  7,  §  7.    io 

forces  in  time  of  war,  or  which   this  State  may  keep  with  the  con-  Wend.  449.    15 

•'  '■  do.  451. 


XVI 


ART.  1.— IIIGHTS. 


Private  property 
secureil.  4  Hill, 
140.  14  Wend. 
54.  15Weml.374. 
18  do.  8.  Ass'y 
Jour.  "23,  p.  705. 
Sen.  Jour.  '26,  p. 
366. 

Compensation  to 
be  ascertained  by 
a  Jury. 


Private  roads,  4 
Hill,  140. 


Freedom  of 
speech  and  the 
press.  Art.  7,  §  i 

2  Hill,  348. 


Two-third  bills. 
Art.  7,  §  9t(«) 


Ri?ht  of  petition. 
1  R.  S.  p.  94,  §  19. 
Divorces.     Sen. 
Doc.  '46.     No. 
125.  do.  '44N0.62 
Ass'y  Jour.  '28, 
p.  584. 

Lotieries,  Art.  7, 
§  11.     23  Wend. 
418.     Ass'y  Jour. 
'26,  p.  936. 
The  people  origi- 
nal owners  of 
land,  1  K.  S.  718, 
§  1.     17  Wend. 
312.    8  Wend. 
183. 

Feudal  tenures 
abolished,  1  K.  S. 
p.  718,  §  3,  4. 
All  lands  allodial 
1  R.  S.  p.  718,  §3. 


Certain  leaHcs 
limited. 


sent  of  Congress  in  time  of  peace  ;  and  in  cases  of  petit  larceny, 
under  tlie  regulation  ol  the  Legislature)  unless  on  presiMitinent  or 
indictment  of  a  grand  jury;  and  in  any  trial  in  any  Court  what- 
ever, tiie  party  accused  shall  be  allowed  to  appear  and  defend  in 
person  and  with  counsel,  as  in  civil  actions.  JNo  person  shall  be 
subject  to  be  twice  put  in  jeopardy  for  the  same  offence  ;  nor  shall 
he  be  compelled  in  any  criminal  case,  to  be  a  witness  against  him- 
self ;  nor  be  deprived  of  life,  liberty  or  property  without  due  process 
of  law  ;  nor  shall  private  property  be  taken  for  public  use  without 
just  compensation. 

Section  7.  When  private  property  shall  be  taken  for  any  public 
use,  the  compensation  to  be  made  therefor,  when  such  compensation 
is  not  made  by  the  State,  shall  be  ascertained  by  a  jury,  or  by  not 
less  than  three  commissioners  appointed  by  a  court  of  record,  as 
shall  be  prescribed  by  law.  Private  roads  may  be  opened  in  the 
manner  to  be  prescribed  by  law  ;  but  in  every  case  the  neces- 
sity of  the  road,  and  the  amount  of  all  damage  to  be  sustained  by 
the  opening  thereof  shall  be  first  determined  by  a  jury  of  freeholdors, 
and  such  amount,  together  with  the  expenses  of  the  proceeding, 
shall  be  paid  by  the  person  to  be   benefitted. 

Section  8.  Every  citizen  may  freely  speak,  write,  and  publish 
his  sentiments  on  all  subjects,  being  responsible  for  the  abuse  of  that 
right  ;  a«d  no  law  shall  be  passed  to  restrain  or  abride  the  liberty 
of  speech  or  of  the  press.  In  all  criminal  prosecutions  or  indictments, 
for  libels,  the  truth  may  be  given  in  evidence  to  the  jury  ;  and  if  it 
shall  appear  to  the  jury  that  the  matter  charged  as  libellioiis  is  true, 
and  was  published  with  good  motives  and  for  justifiable  ends,  the 
party  shall  be  acquitted,  and  the  jury  shall  have  the  right  to  de- 
termine the  law  and  the  fact. 

Section  'J.  Tlie  assent  of  two-thirds  of  the  members  elected  to 
each  branch  of  the  Legislature,  shall  be  requisite  to  every  bill  ap- 
propriating the  public  moneys  or  property  for  local  or  private  pur- 
poses, (a) 

Section  10.  No  law  shall  be  passed,  abridging  the  right  of  the 
people  peaceably  to  assemble,  and  to  petition  the  government,  or 
any  department  thereof;  "  nor  shall  any  divorce  be  granted,  other- 
wise than  by  due  judicial  proceedings;"  nor  shall  any  lottery  here- 
after be  authorized,  or  any  sale  of  lottery  tickets  allowed,  within 
this  State. (c) 

Section  11.  The  people  of  this  State,  in  their  right  of  sovereignty, 
are  deemed  to  possess  the  original  and  ultimate  properly  in  and  to 
all  lands  within  the  jurisdiction  of  the  State  ;  and  all  lands,  ihe  title 
to  which  bhuU  fail,  from  a  defect  of  heirs,  shall  revert  or  escheat  to 
the  people. 

Section  12.  All  feudal  tenures  of  every  description,  with  all  their 
incidents,  are  declared  to  be  abolished  ;  saving,  however,  all  rents 
aK  services  certain  which  at  any  time  heretofore  have  been  law- 
fully created  or  reserved. 

Section  l.'J.  All  lands  within  this  State  are  declared  to  be  allodial, 
so  that,  subject  only  to  the  liability  to  escheat,  the  entire  and  abso- 
lute ])roperty  is  vested  in  tlio  owners  according  to  the  nature  of  their 
reK|)ectivo  estates. 

^eclion  14.  No  lease  or  grant  of  agricultural  land  for  a  longer 
period  than  twelve  years,  hereafter  made,  in  which  shall  be  re- 
Borved  any  rent  or  service  of  any  kind,  shall  bo  valid. 


(a)  "or  crcatinsj,  continuing,  altering  or  renewing  any  body  politic  ur  corpo- 
rate," oniitleil. 

(//)  Sen.  Jc.ur.  '23,  p.  42.3,  p.  371 ;  do.  '2i,  p.  259,  j).  371-.305-46S;  do.  '2i5,  p.  461 ; 
ilo  ".ill,  p.  r,ir>-cm;  <lo.  '27,  i).  509;  do.  '28,  p.  308-456;  do.  '29,  ii.  402;  do.  '30, 
Due.  No.  278;  do.  'M,  p.  ',M2-3'I8-:M-390-^!j1  ;  do.  '.35,  p.  1 13-;5:J3-.'J65  ;  Sen.  Jour. 
'10,  It  2KJ;  do.  '43,  p.  2'i:Wll-.%6  ;  Doc.  No.  72.  Ass.  Jour.  '2:3,  p.  Kll  ;  do.  '2-1, 
I)  910  ;  ilo.  '25,  p.  996  ;  Ahh.  Jour.  '25,  p.  778;  do.  '27,  p.  1037  ;  do.  '28,  p.  788  ;  do. 
'29,  p.  '.03;  do.  '34,  Due.  No.  :wl-3Vf2 :  Ass.  Jour.  '38,  p.  454;  Doc.  No.  191;  do. 
M4,  p.  I0I(M(»21  ;  ilo.  '45,  p.  7;M. 

(c)  "  No  IciUiTV  Hhall  hureaHer  be  authorized  in  Ihis  Slate,  and  the  Legislature 
nhnll  paKH  lawH  in  prevent  the  Halo  of  all  lottery  tickets  williin  tlii.'i  Slate,  except 
iu  loiicrica  already  provided  by  law."— Cmi»(.  1821. 


ART.  2.— SUFFRAGE.  XVii 

Section  15.  All  fines,  quarter  sales,  or  other   like  restraints  upon  Fines  and  quarter 
alienation  reserved,  in  any  grant  of  land  hereafter  to  be  made,  shall  ^=*''^^  abolished. 
be  void. 

Section  IG.  No  purchase  or  contract  for  the  sale  of  lands  in  this  Certain  purcha 
State,    made   since   the    fourteenth  day  of  October,   one  thousand  vo1d'^°'Ar"'7"'§'^ 
seven  hundred  and  seventy-five  ;  or  which  may  hereafter  be  made,   12.    20Jolin.'693. 
of,  or  wiihthe  Indians,  shall  be  valid,  unless  made  under  the  autho- 
rity and  with  tiie  consent  of  tiie  Legislature. 

Section  1 7.  Such  parts  of  the   common   law,  and   of  the   acts  of  Paris  of  the  com- 
the   Leirislature   of  the   colony  of  New  York,  as  together  did  form  "nTsi'aui'tes  d»- 
the  law  of  the   said   colony,  on   the   nineteenth   day   of  April,  one  clareti  to  be  law. 
thousand  seven  hundred  and  seventy-five,  and  the  resolutions  of  the  Art.  7,  §  13. 
Congress  of  the  said  colony,  and  of  the  Convention  of  the  State  of 
New  York,  in  force   on    tlic   twentieth   day  of  April,  one  thousand 
seven    hundred   and  seventy-seven,  which  have   not  since  expired, 
or  been  repealed  or   altered  ;  and   such   acts   of  the   Legislature  of 
this  State  as  are  now  in  force,  shall  be  and  continue  the  law  of  this 
State,  subject  to  such  alterations  as  the  Legislature  shall  make  con- 
cerning (he  same.     13ut  all  such  parts  of  the  common  law,  and  such 
of  the  said  acts  or  parts  thereof  as   are  repugnant  to  this  Constitu- 
tion, are    hereby  abrogated  ;  "  and   the   Legislature,  at  its  first  ses-  Code 
sion  after  the  adoption  of  lliis  Constitution,  shall  appoint  three  com- 
missioners, whose   duty  it  shall  be  to  reduce  into  a  written  and  sys- 
tematic  code  the  whole  body  of  the  law  of  this  State,  or  so  much 
and  such  parts  thereof  as  to  the  said  commissioners  shall  seem  prac- 
ticable and  expedient.     And   the   said    commissioners   shall  specify 
such  alterations  and  amendments  therein  as  they  shall  deem  proper, 
and  they  shall  at  all  times  make  reports  of  their  proceedings;  to  the 
Legislature,  when  called   upon   to  do  so  ;  and  the  Legislature  shall 
pass  laws  regulating  the  tenure   of  office,  the   filling  of  vacancies 
therein,  and  the  compensation  of  the  said  commissioners  ;  and  shall 
also  provide  for  the  publication  of  the  said  code,  prior  to   its   being 
presented  to  the  Legislature  for  adoption." 

Section  18.  AH  grants   of  land  within   this   State,  made   by  the  the''kJ[;g  of^Grea^t 
King  of  Great  Britain,  or  persons  acting  under  his  authority,  after  Briiain°void.  Ari 
the  fourteenth   day  of  October,  one   thousand   seven    hundred  and  7,  sec.  14. 
seventy-five,  shall  be  null   and  void  ;  but  nothing  contained  in  this 
Constitution    shall   afFect    any   grants   of    land    within    this    State,   Certain  rights 
made  by  the  authority  of  the  said  kmg  or  his  predecessors,  or  shall  not  affected, 
annul  any  charters  to  bodies  |)olitic  and  corporate,  by  him  or  them 
made,  before  that  day  ;   or  shall   affect   any  such  grants  or  charters 
since  made  by  this  State,  or  by  persons   acting  under  its  authority, 
or  shall  impair  the  obligation  of  any  debts  contracted  by  this  State, 
or  individuals,  or  bodies   corjjorate,  or  any  other  righls  of  property, 
or  any  suits,  actions,  righls  of  action,  or  other  proceedings  in  courts 
of  justice. 

ARTICLE  n. 
Section  1.  Every  male  citizen  of  the  age  of  21  years,  who  shall  Uualification  of 
have  been  "  a  citizen  for  ten  days,"  and  an  inhabitant  of  this  State  ggaT^Ainend^ 
one   year   next  preceding   any   election,   and    for  the    last  "four"  ment  No.  2. 
months  a  resident  of  the  county  where  ho  may  offer  his  vote,  shall 
be  entitled  to  vote  at  such  election  in  the  election   district  of  which 
he  shall  at  the  time  be  a  resident,  and  not  elsewhere,  for  all  officers 
that  now  are  or  hereafter  may  be  elective  by  the  people  ;  "  but  such 
citizen  shall  have  been,  for  thirty  days   next  preceding  the  election, 
a  resident  of  the   district  from  which  the  officer  is  to  be  chosen  for 
whom  he  ofters   his  vote."      But   no   man    of  color,  unless   he    shall   Freehold  for p«r- 
have  been  for  three  years  a  citizen  of  this  Slate,  and   for    one  year  ^/('g  g'e°c  J'. 
next  preceding  any  election  shall  have  been  seized  and  possessed  of 
a  freehold  estate  of  the  value  of  two  hundred  and  fifty  dollars,  over 
and  above  all  debts  and    incumbrances  charged  thereon,  and  shall 
have  been  actually  rated  and  paid  a  tax  thereon,  shall  be  entitled  to 
vote  ai  such  election.     And   no    person  of  color  shall  be  subject  to 

B 


Xviii  ART.  3.— LEGISLATIVE. 

direct  taxation  until  lie  sliall  be  seized  and  possessed  of  siicii  real 
estate  as  aforesaid. 
Who  may  be  ex-  t«ection  2.  Laws  niiiy  be  passed  excluding  from  the  right  of  suf- 
cluded.  An.  2,  f^ggg  q\[  persons  who  have  been,  or  may  be  convicted  '•  uf  bribery, 
ed.  p~  129  sec.  2.  of  larceny,"  or  of  any  infaniuus  crime,  "and  for  dejiriviiig  every 
Betiins.  Ass'y  person  who  shall  mnke,  or  become  directly  or  indirectly  interested 
Doc.  '39,No.  28G.  in  any  bet  or  wager  depending  upon  the  result  of  any  election,  from 
Gov^ message '44  y^g  j.ight  to  vote'at  such  elec  ion." 

^'    .'  iSpclion  3.  For  the    purpose  of  voting,  no  person  shall  be  deemed 

1  R.  S.  3d  ed.  p.     to  have  gained  or  lost  a  residence,  by  reason  of  his  presence  or  ab- 

139,  sec.  21.  sence,  while   employed   in   the  service   of  the   United    States;  nor 

Laws  1S42.  while  engaged  in  the   navigation    of  the  waters   of  this  Slate,  or  of 

the  United  States,  or  of  the  high  seas;  nor  while  a  student  of  any 

seminary  of  learning;  nor  while  kept   at  any  alms  house,  or  other 

asylum,  at  public  expense  ;  nor  while  confined  in  any  public  prison. 

Proofsof  right  to        Section  4.   Laws  shall  be  made  for  ascertaining,  by  proper  proofs, 

S^^Sei^Doc  ^38    ''''^  citizens  who  shall  be  entitled  to  the  right  of  suffrage  hereby  es- 

No.  62,' '39,'No.'  tablished. 

107.    Laws'  40,  Section  5.  All  elections  by  the  citizens   shall  be  by  ballot,  except 

^  29     BaUot^"'  ^'^^  such   town  officers  as   may  by  law  be  directed  to  be  otherwise 
Art.  2,  sec.  4. '       chosen. 

ARTICLE  III. 

Legislature,  Art.       Section  1.  The  legislative  power  of  this  State  shall  be  vested  in 

12rsen.  wl'  "^  ^^''^^^  ^"'^  Assembly.  _    ' 

'21,  p.  315.  Section  2.  The  Senate  shall   consist  of  thirty-two  members,  and 

Senate  and  Ass'y.  the  Senators  shall  be  chosen  for  "  two"  years.     The  Assembly  shall 
Art.  1, sec.  2.         consist   of  one   hundred  and   twenty-eight   members,  who  shall  be 

annually  elected. 
Senatorial  Dis-  Section  3.  The   State   sliall   be   divided    into    "thirty-two"  dis- 

tricts. Art.  1,§5.  tricts,  to  be  called  Senate  districts,  each  of  which  shdll  choose  one 

Senator.     The  districts  shall   be   numbered  from  one  to  thirty-two 

inclusive. 
jjo.  1.  District  number  one  (1)  shall   consist  of  the   counties  of  Suffolk, 

Richmond  and  Queens. 
No.  2.  District  number  two  (2)  shall  consist  of  the  county  of  Kings. 

No.  3,4,5,6.  Districts   number  three,  (3,)  number  four,  (4,)  number  five,  (5,) 

and  number  six,  (G.)  shall  consist   of  the   city  and  county  of  New- 
Supervisors  to       York  ;  and  the  board  of  suprrvisors   of  said   city  and   connly  shall, 

?iyi'!fi^®-^';^'°'^''  on  or  before  the  first  day  of  i\lay,  one  thousand  eight  hundred  and 

into  districts.  .  ■'.,.■',  ,.",  ,  , 

lorty-seven,  divide    the   said   city  aiul   county  into   the   nnmber  of 

Senate  Districts  to  which  it  is  entitled,  as  near  as  may  bo  of  an 
equal  number  of  inhabitants,  excluding  aliens  and  pnrsous  of  color 
not  taxed,  and  consisting  of  convenient  and  contiguous  territory  ; 
and  no  Assembly  District  shall  be  divided  in  tlie  formation  of 
a  Senate  District.  The  board  of  supervisors,  wlien  tlu-y  shall 
have  completed  such  division,  shall  cause  certificates  thereof,  sta- 
ting lhi5  nuiiiber  and  bouiidaiies  of  each  district  and  the  |)opulation 
thereof,  to  bf;  filed  in  the  office  of  the  Secretary  of  State,  and  of 
the  clerk  of  llie  said  city  and  county. 

ffo  7.  District  number  seven  (7)  shall  consist  of  the  counties  of  West- 

chester, Putnam  and  Rockland. 

No.  8.  District  number  eight  (rij  shall  consist  of  the  counties  of  Dutchess 

and  (-oliimhia. 

No.  9.  I)istrict  number  nino  (9)  shall  consist  of  the  counties  of  Orange 

and  .Sulivan. 

fi„,  10.  DiMiricl   iniiiilii'r   ten  (10)  shuU  consist  of  the  counties  of  Ulster 

and  (ireeiie. 

Ko.  II.  District  nimiber  eleven  (11)  shall  consist  of  the  counties  of  Albany 

and  Schenectady. 

No.  12.  District  number  twelve  (12)  shall  consist  of  the  county  of  Rens- 

HchxT. 

No.  13.  DiKtrict   number   thirteen   (13)  shall   consist  of  the   counties  of 

Washington  and  Saratoga. 


ART.  3— LEGISLATIVE.  ^^^ 

District  number  fourleen  (14)  shall  consist  of  the  counties  of  War-  No.  14. 
ren,  Essex  and  C'linton. 

District   number  fifteen  (15)  shall  consist  of  tho   counties  of  St.  No.  15. 
Lawrence  and  Franklin. 

District  number  si.\teen  (IC)  shall  consi-st  of  the  counties  of  Her-  No.  16. 
kimer,  Hamilton,  Fulton  and  Montgomery. 

District  number  seventeen  (17)  shall   consist  of  the   counties  of  No.  17. 
Schoharie  and  Delaware. 

District  number  eifrhteen  (18)  shall  consist  of  the   counties   of  No.  18. 
Otsego  and  Chenango. 

District  number  nineteen  (19)   shall  consist  of  the   county  of  No.  19. 
Oneida. 

District  nember  twenty  (20)  shall  consist  of  the  counties  of  Ma-  No.  20. 
dison  and  Oswego 

District  number  twenty-one  (21)  shall   consist  of  the  counties  of  No.  21. 
Jefferson  and  Lewis. 

District  number  twenty-two  (22)  shall  consist  of  the  county  of  No.  S2. 
Onondaga. 

District  number  twenty-three  (23)  shall  consist  of  the  counties  of  No.  23. 
Cortland,  Broome  and  Tioga. 

District  number  twenty-four  (24)  shall  consist  of  the  counties  of  No.  ^ 
Cayuga  and  Wayne. 

District  number  twenty-five  (25)  shall  consist  of  the  counties  of  No.  25. 
Tompkins,  Seneca  and  Yales. 

District  number  twenty-six  (2G)  shall  consist  of  tho  counties  of  No.  26. 
Steuben  and  Chemung. 

District  number  twenty-feven  (27)  shall  consist  of  the  county  of  no.  27 
Monroe. 

District  number  twenty-eight  (28)  shall  consist  of  the  counties  of  no.  28. 
Orleans,  Genesee  and  Niagara. 

Di.=trict  number  twenty-nine  (29)  shall  consist  of  the  counties  of  nq.  29. 
Ontario  and  Livingston. 

District  number  thirty  (30)  shall  consist  of  the  counties  of  Allegany  no.  30. 
and  Wyoming. 

District  number  thirty-one  (31)  shall  consist  of  the  county  of  Erie.  No.  31. 

District  number  thirty-two  (3:2)  shall  consist  of  the  counties  of  no.  .32. 
Chautaque  and  Cattaraugus. 

Section  4.   An  enumeration  of  inhabitants  of  the  State  shall  be  Census  when  to 

taken,  under  the  direction  of  the  Legislature,  in  the  year  one  thou-  tie  taken;  Art.  1. 

sand  eight  hundred  and  fifty-five,  and  at  the  end  of  every  ten  years  ^'^'^'  ^' 

thereafter  :  and  the  said  districts  shall  be  so  altered  by  the  Leo-isia-  t%-  ■  •  ,   .   v     ■  ' 
.  .,i/5»  •  f.      .1  •  c  -'=.        District!?  to  De  al- 

ture,  at  the  farst  sessiou  alter  the  return  of  every  enumeration,  that  tered. 

each  Senate  district  shall  contain,  as  nearly  as  may  be,  an  equal 

number  of  inhabitants,  excluding  aliens,  and  persons  of  color  not  to  remain  unal- 

taxed  ;  and  shall   remain    unaltered    until    the    return    of   another  tered. 

enumeration,  and  shall  at  all  times  consist  of  contiguous  territory,  Ass'y  doc.  '37, 

and  no  county  shall  be  divided  in  the  formation  of  a  Senate  district,  ^°-  ^■^'^'  ''"•  '"^^ 

"except  such   county  shall    be  equitably  entitled    to   two    or  more  doc  45^ 'no^66 

Senators." 

Section  5.  The  members  of  Assembly  shall  be  apportioned  among  Members  of  As- 
the  several  counties  of  the  State,  by  the  Legislature,  as  nearly  as  sembly  to  be  ap- 
may  be,  according  to  the  number  of  their  respective  inhabitants,  P^i"''""^'''     •*"■ 
excluding  aliens,  and  persons  of  color  not  taxed,  and  shall  be  chosen    ' 
by  single  districts. 

The  several  boards  of  supervisors  in  such  counties  of  this  State,  Supervisors  to 
as  are  now  entitled  to  more  than  one  member  of  Assembly,  shall  as-  divide  county  in- 
semble   on   the  first    Tuesday  of  January   next,   and    divide   their  Jo. '^^^'^n^'^'y  dis- 
respective  counties  into  Assembly  districts  equal  to  the  number  of 
members  of  assembly  to  which  such  counties  are  now  severally  en- 
titled by  law,  and  shall  cause  to  be  filed  in  the  offices  of  the  Secre- 
tary of  State  and  the  clerks  of  their  respective  counties,  a  description 
of  such  Assembly  districts,  specifying  the  number  of  each  district 
and  the  population  thereof,  according  to  the  last  preceding  State 
enumeration,  as  near  as  can   be  ascertained.     Each  Assembly  dis- 
trict shall  contain,  as  nearly  as  may  be,  an  equal  number  of  inhabi- 


XX  ART.  3— LEGISLATIVE. 

tants,   excluding   aliens   and  persons  of  color   not   taxed,  and   sliall 
consist  of  convenient  and  contiijuous  territory  ;  but  no  town    shall 
be  divided  in  the  formation  of  Assembly  districts. 
Members  to  be  The  Legislature,  at  its  first  session  after  the  return  of  every  enu- 

re-apporuoned.      meration,  shall  reapportion  the    members  of  Assembly  among   the 
'    '      '    '         several  counties  of  this  Stale,  in  manner  aforesaid,  and  the  boards 
of  supervisors  in  such  counties  as  may  be  entitled,  under  such  re- 
apportionment, to  more  titan  one  member,  shall  assemble  at  such 
time  as  the  Legislature    making  such   re-apportionment  shall    pre- 
Districts  to  be  al-  scribe,  and  divide  such  counties  into  Asseinbly  districts,  in  the  maii- 
**''^"-  ner  herein  directed  ;  and  the   apportionment  and   districts  so  to  be 

To  remain  unal-  made,  shall  remain  unaltered  until  another  enumeration  shall  be 
tered.  taken  under  the  provisions  of  the  preceding  section. 

Each  county  en-  Every  county  heretofore  established  and  separately  organized, 
titled  to  one  "  except  the  county  of  Hamilton,"  shall  always  be  entitled  to  one 

member,    except  ,^..1        »ii  j  .inuu  r. 

Hamilton.    Art!     member  of  the  Assemblj',  and   no  new  county  shall    be  herealter 

1,  sec.  7.    Ass'y     erected,  unless  its  population  shall  entitle   it  to  a  member. 

doc.  '-to,  No.  123.        f|.|^p  county  of  Hamilton  shall  elect  with  the  county  of  Fulton, 

wUh^Fulwii ^^^"^^  ""'''  '''®  population  of  the  county  of  Hamilton  shall,  according  to 

the  ratio,  be  entitled  to  a  member. 
Pay  of  member.?.        Section  (i.  'i"he  members  of  the  Legislature  shall  receive  for  their 
Art.  1,  sec.  9.  services,  a  sum   not  exceeding  three   dollars  a  day,  from  the  com- 

^peVdi°x  E '•  dt    mencement  of  the  session;  but  such  pay  shall  not  exceed  in  the 
';d5, 1100.      '       '   aggregate,  three  hundred  dollars  per  diem  allowance,  except  in  pro- 
ceedings for  impeachment.     The  limitation  as  to  the  aggregate  com- 
pensation shall  not  take   efl'ect  until  the  year  one  thausand  eight 
liuridred  and  forty-eight.      W  hen  convened  in  extra  session  by  the 
Mileage.  Governor,  they  shall  receive  three  dollars  per  day.     They  shall  also 

receive  the  sum  of  one  dollar  for  every  ten   miles  they  shall  travel, 
in  going  to  and  returning  from  their  place  of  m'jeting  on  the  most 
Speaker's    com-   usual  route.     The  Speaker  of  the  Assembly  shall,  in   virtue  of  his 
pensation.  otiice,  receive  an  additional  compensation  equal  to  one-third  of  his 

per  diem  allowance  as  a  member. 

No  member  to  Section  7.  No  member  of  the  Legislature  shall  receive  any  civil 

menirArL'^f°sec!   ap|>oi:ii-"iei>t    "  within  this    Mate,  or   to   the  Senate   of  the   United 

10.  Stales,  from   the  Govenor,"(/7)  the  Govenor  and  Senate,  or  from  the 

Legislature,  during  the  term  for  which  he  shall  have  been  electe  !  ; 

"  and  all  such  appointments,  and  all  voles  given  for  such  member, 

for  any  such  ofHce  or  appointment,  shall  be  void." 

Whocannotbea        Section  8.  JSopersoii  being  a  member  of  Congress,  or  holdingany 

member.    Art.  1,   judicial  or  military  (dlicc   under  the  United   States,  shall  hold  a  seat 

^  ■     ■       ,  111  the  Legislature. — And  if  any  persan  shall,  "  after  his  eleclian  as 

3<K.     As8'y~(ioc.  «i  member  of  tlie  Legislature,"  be  elected  to  (congress,  or  apjiointed 

'45,  No.  19, 20.       to  any  oilice,  civil  or  military,  under  the  Government  of  the  United 

Stales,  iiis  acceptance  thereof  shall  vacate  his  seat. 
Time   of  annual        Section  !).  The  elections  of  Senators   and   members  of  Assembly, 
election,  art.  1,      pursuant  to  the  provisions  of  this  Constitution,  shall  be  held  on    the 
*^'^'     '  'J'uesduy  succeeding  the   first   Monday  of  November,  unless  other- 

wise directed  by  the  Ijegisjature. 
rowers  of  each  Section  ID.   A  majority  of  each   house  shall  constitute  a  quorum 

House.  An.  1,  tQ  Jq  business.  Each  house  shall  determine  the  rules  of  its  own 
,,  '   [      ■  proceedings,  and  be  the  judge  of  the  "  elections,  returns  and  "  qualifi- 

AMJt'y  Jour,  '.ki  cations  of  its  own  members,  shall  choose  its  own  officers,  and  tiie 
J).  48-100;  dii. '27,  Senate  shall  chouse  a  contemporary  ])resideni,  when  the  Lieutenant 
j^  48«)-070 ;  do.  (joy^rnor  shall  nut  titleiid  as  presitlenl,  or  shall  act  as  Governor.,, /y) 
p.  Id'kw'     I,eL'.' 

a'iw'v'Joik°':J''  <"^  '  "•  ^-  !••  ''^'  "'■'■•   ";   ■'''  ''■''•  !'•   '■''^'  '"''-'■  "'•     Mf'i'l'crs  aiinoiiiicd  (o 

doc   Nil    11-   do  examine  TrcaHurur's  uccouniM.     Sen.  Join'. '.'ii,  p.  132;  Doc.  No.  18.     N.  1'. 'I'al- 

•40  I)  tW   doc      '  ni'''<l':<'i  "  !^H"e  Senator,  choHiMi  II.  S.  Senator.     Sen.  Jonr.  '1.'),  p.  !)'.).     Li.  (ioT. 

K,'  -jox  ■  ilo  Mfi  DickniHon  and  Si:nator  KoHtrr,  wcri'  appoiiiKMl  II.  S.  Si'iiiuorb'  by  Gov.  Houck. 

A.^r   N,J  4f.  (IB  ('';  Temporary  I'roHidenl  ol  the  Sniale.     Sen.  .I(nn-.  'Si,  [k  lyWlU;  do.  '28,  p. 

aoc.  no».  to,  i«.     j.,j    ^j^^  ,.^,j^  ^^  <,_^. .  ^^,^^  j^^^^^  ,,,._,^  ^^    ,^,^.  ^^^^   ,_j,.^  ^^   j,^, 

^"^  (r)  r'ower  ol  cxpellni'.;  a  Mcniln'r.     Sun.  .lour.  Mli,  p.  r.77  .^>70  .'H) ;  Dor.  No.  W. 

A  ■■-.  .lour.  M:!,  II   Ht.1.     I  K.  S   IV   \ri\,  huc.  U.     IJ  each  ol  privilege.     Am.  Jour. 
'M,  Uoc.  NuH.  I  UJ-lu5  ;  do.  'J7,  Nu.  327.     1  U.  S.  j).  164,  ucc.  13. 


ART.  4— EXECUTIVE.  xxi 

Section  11.  Each  house  shall  keep   a  journal  of  its  proceedings,  Journals  to  be 

and   publish    the  same,  except  such  parts  as   may  require  secrecy,  gg^^'^ '''"^"  •'^'''"  ^' 
The  doors  of  eacii  house  shall  be  kepi  open,  except  when  the  public 
welfare  shall  require  secrecy      Neither  house  shall,  without  the  con- 
sent of  the  other,  adjourn  for  more  than  two  days. 

Section  12.   For    any  speech    or   debate    in   either   house  of   the  Freedom  in  de- 

Leffislature,  the   members   shall    not   be    questioned  in   any   other  154^50^,  jj.  '  ^' 
place. 

Section  13,  Any  bill  may  originate  in  either  house  of  the  Legisla-  ^ills.  Art.  1,  sec. 
lure,  and  all  bills  passed  by  one  house  may  Le  amended  by  the  other. 

Section  14.  The  enacting  clause  of  ail  bills  shall  be  "  The  people  Enacting  clauee 

of  the  State  of  New  York,  represented  in  Senate  and    Assembly,  "'  •''^'s- 
do  enact  as  follows."  and  no  law  shall  be  enacted  except  by  bill. 

Section  15    No   bill  shall    be    passed    unless    by  the   assent   of  a  Majority  of  mem- 

maioritv  of  all  the  members  elected   to  each  branch  of  the  Legisia-  bers  elected  re- 

■'-',,  .1      n      1  I     n    u     i    1         •  q  in  red  to  pass 

ture.  and  the  question  upon  the  hiiai   passage  shall   be  taken  nnme-  |],|ig 

diately  upon  its  last  reading,  and  the  yeas  and  nays  entered  on  the 
journal. 

Section  16    No  private  or  local  bill,  which  may  be  passed  by  the  Private  or  local 
Legislature,  shall  embrace  more  than  one  subject,  and  that  shall  be  '^'"■'^• 
expressed  in  the  title. 

Section    17.     The   Legislature   may  confer   upon   the   boards   of  Local  legislature, 
supervisors,  of  the  several  counties  of  the  State,  such  further  powers, 
of  local  legislation  and  administration,  as  they  shall  from  lime  to 
time  prescribe. 

ARTICLE  IV. 

Section  1.  The  executive  power  shall  be  vested  in  a  Governor,  Executive  pow- 
who  shall  hold  his  office  for  two  years  ;  a  Lieutenant  Governor  shall  s'^'-  ■*"■  3.  sec.  1. 
be  chosen  at  the  same  time,  and  for  the  same  term. 

Section  2.  No  person  except  a  citizen  of  the  United  States,  shall   Qualifications  of 
be  eligible  to  the  office  of  Governor  ;   nor  shall  any  person  be  eligible   ^c^""°l^  ^' 
to  that  otfce,  who  shall  not   have    attained  the   age  of  thirty  years,  i845,p.  445.    ' 
and  who  shall  not  have  been  five  years  next  preceding  his  election, 
a  resident  within  this  State. («) 

Section  3.    The    Governor    and   Lieutenant    Governor    shall   be  Election  of  Gov. 
elected   at  the  times   and  places  of  choosing  members  of  "  the  As-  and  Lt.Gov.  Art- 
sembly."     Tlie  persons  respectively  having  the  highest  number  of  '''" 
vates  for  Governor  and   Lieutenant  Governor,  shall  be  elected  ;  but 
in  ca^e  two  or  more  shall  have  an  equal   and  the  highest  number  of 
votes  for  Governor,  or  for   Lieutenant  Governor,  the  two   houses  of 
the  Legislature  "  at  its  next  annual  session,"  shall,  "  forthwith,"  by 
joint  ballot,  choose  one  of  the  said  persons  so  having  an  equal  and 
the  highest  number  of  votes   for  Governor,  or  Lieutenant  Governor. 

Section  4.  The   Governor  shall   be  commander-in-chief  of  "  the  Powers  and  du- 

military  and  naval  forces"  of  the   State.      He  shall  have  power  to  ties  of  Gov.  Art. 

convene  the  Legislature  (or  the  Senate  only)  on  extraordinary  occa-     ''     "    '    ,„, 

rTiH  •  1  ..iri.  1    Sen.  Jour.  32,  p. 

sions.      He   shall  communicate   by    message    to  the  Legislature  at  4Qg_  ' '^ 

every  session,  the  cond'tion  of  ihe  Stale,  and  recommend  such  mat- 
ters to  them  as  they  shall  judge  expedient. — He  shall  transact  all  ne- 
cessary business  with  the  officers  of  government,  civil  and  military. 
He  shall  expedite  all  such  measures,  as  may  be  resolved  upon  by 
the  Legislature,  and  shall  take  care  that  the  laws  are  faithfully 
executed.  He  shall,  at  stated  limes,  receive  for  his  services,  a  Compensation. 
compensation  to  be  established  by  law,  which  shall  neither  be  in- 
creased nor  diininislied  "  after  his  election  and  during  his  continu- 
ance in  office. "(a) 

Section  5.  The  Governor  shall  have  the  power  to  grant  reprieves  Pardoning  pow- 
"  commutations"  and  pardons  alter  conviction,  for  all  offences  ex-  er.  Art.  3.  sec.  5. 
cept  treason  and  cases  of  impeachment,  "  upon  such  conditions,  and 

(a)  The  reqiiirementa  of  being  a  native  citizen  and  freeholder  omitted. 
(6)  "Uurinj  the  term  for  which  he  shall  have  been  elected."— OW  Constitu- 
tion. 


XXll 


ART.   5— STATE   OFFICERS. 


Sen.  Jour.  '24,  p. 
56;  do. '40, p. lis. 
Sen.  Jour    '46, 
Joe.  Ko.  142. 


When  powerB  of 
Gov.  devolve  on 
Lt.  Gov.  Art.  3, 
sec.  6. 
Sen.  Jour. 

mr. 


'29,  p. 


viualifications, 
powers  and  du- 
ties of  Lt.  Gov. 
Art.  3,  sec.  7. 
Sen.  Jour.  '26,  p. 
127,415,  adjourns 
the  Senate. 


Compensation  of 
Lt.  Gov. 


Billa  to  be  pre- 
sented to  Gov. 
.\rt.  1,  .sec.  12. 
Sen.  Jour.  '42,  p. 
68,  69,  111. 
If  returned  with 
objections,  how 
disposed  of. 


Eflcct  ifnot  re- 
turned within  ten 
dayn. 


with  such  restrictions  and  limitations,  as  he  may  tliii'k  proper, 
subject  to  such  regulation  as  maybe  provided  by  law  relative  to  the 
manner  of  applying  for  pardons."  Upon  conviction  for  treason,  he 
shall  have  power  to  suspend  the  execution  of  the  sentence,  until  the 
case  shall  be  reported  to  the  Legislature  at  its  next  meeting,  when 
the  Legislature  shall  either  pardon,  ''  or  conmiute  the  sentence," 
direct  the  execution  of  the  sentence,  or  grant  a  further  reprieve. 
"  He  shall  annually  communicate  to  the  Legislature  each  case  of  re- 
reprieve,  commutation  or  pardon  granted;  slating  the  name  of  the 
convict,  the  crime  of  which  he  was  convicted,  the  sentence  and  its 
date,  and  the  date  of  the  commutation,  pardon  or  reprieve." 

Section  6.  Li  case  of  the  impeachment  of  the  Governor,  or  his 
removal  from  office,  death,  inability  to  discharge  the  powers  a 
duties  of  the  said  office,  resignation  or  absence  from  the  .State,  t 
powers  and  duties  of  the  office  shall  devolve  upon  the  Lieutenant 
Governor  for  the  residue  of  the  term,  or  until  the  disability  shall 
cease.  But  when  the  Governor  shall,  with  the  consent  of  the  Le- 
gislature, be  out  of  the  State  in  time  of  war,  at  the  head  of  a  military 
force  (hereof,  lie  shall  continue  commander-in-chief  of  all  the  mili- 
tary force  of  the  Slate. 

i^ection  7.  "  The  Lieutenant  Governor  shall  possess  the  same 
qualifications  of  eligibility  for  office  as  the  Governor."  He  shall  be 
President  of  the  ."Senate,  but  shall  have  a  casting  vote  therein. (o) 
If  during  a  vacancy  of  the  office  of  Governor,  the  Lieutenant 
Governor  shall  be  impeached,  displaced,  resign,  die,  "  or  become  in- 
capable of  performing  ihe  duties  of  his  office,"  or  be  absent  from  the 
State,  the  President  of  the  Senate  shall  act  as  Governor,  until  the 
vacancy  be  filled,  or  the  disability  shall  cease. 

Section  8.  The  Lieutenant  Governor  shall,  while  acting  as  such, 
receive  a  cr  mpensalion  which  shall  be  fixed  by  law,  and  which  shall 
not  be  increased  or  diminished  during  his  continuance  in  office. 

Section  9.  Every  bill  which  shall  have  passed  the  Senate  and 
Assembly,  shall,  before  it  becomes  a  law,  be  presented  to  the  Go- 
vernor :  if  he  approve  he  shall  sign  it ;  but  if  not,  he  shall  return  it 
with  his  objections  to  that  house  in  which  it  shall  have  originated; 
who  shall  enter  the  objections  at  large  on  their  journal,  and  pro- 
ceed to  reconsider  it  (/;j  If  after  such  reconsideration,  two-thirds 
of  the  members  present  shall  agree  to  |)ass  the  bill,  it  shall  be  sent, 
together  with  the  objections,  to  the  other  house,  by  which  it  shall 
likewise  be  reconsidered;  and  if  approved  by  two-thirds  of  all 
the  members  present,  it  shall  become  a  law,  notwithstanding  the 
objections  of  the  Governor.  But  in  all  such  cases,  the  votes  of  both 
houses  shall  be  determined  by  yeas  and  nays,  and  the  names  of  the 
members  voting  lor  and  against  the  bill,  shall  be  entered  on  the  jour- 
nal of  each  house  rc.^^pectively.  If  any  bill  shall  not  be  returneci  by 
the  Governor  within  ten  days  (^Sundays  excepted)  aft(  r  it  shall  have 
been  presented  to  him,  the  same  shall  be  a  law,  in  like  manner  as  if 
he  had  signed  it,  unless  the  Legislature  shall,  by  their  adjournment, 
pievent  its  return  ;  in  which  case  it  shall  not  be  a  law. 


ARTICLE  V. 

Stale  ofTicerw,  Section  1.     The  Secretary  of  State,  Com[)troller,  Treasurer  and 

mlriTof  omrenmi  Atlorney-C^eneral  shall    he  chosen  at    a  general  election,  and  shall 

comperiH.-jiiiiri.  hold  iheir  offices  for  two  years       Each  of  the  oflicers  in  this  Article 

Art.  1,  Hcc.  0,  en-  uaiucd  (except  the  Speaker  of  the  Assembly,)  shall  at  stated  times, 

urciy  changed.  during  \i\n  continuance  in  office,  receive  for  his  services,  a  compen- 


^n)  </iiniiii|;  voiCH.      r>i;n.  uoiir     ^'t>,  i 
30M(W;  do   '.'tO,  p  27fi-:t7l  ;  do   '13,  p    'X'J  rAl -r,V.) 
(I))  KiIIn  rfturiii;d  Willi  olijcrlii 


",.'0,  p.   17rt  2,'-.7;  do.  '37,  p. 


(h)  liillN  rr'tiiriii;d  Willi  olijcrliiiMH.     Smi    .lour.  '23,  p.  423;  do.  '24,  [).  3r>9 ;  do. 

ai.'i ;  do.  4<W;  do  ■•.^,  p  Kll  ;  do.  '.35,  p.  249;  do.  ".ii; ;  p.  021;  do.  '4(1,  p.  279;  do. 

'42,  p.  2H1  :«iO.     Ahh.  .lour.  '24,  p.  1071    1 1:«;  ilo    '-J?,  p    1131  ;  do.  '29,  p   3.37;  do. 

':»,  p.  8H0 ;  Uoc.  No.  aai) ;  do.  '35,  ii.  <.m  ;  do.  '39,  p  if-i?  ;  do.  '42,  i),  «25-993 ;  do. 
•46,  p.  1319. 


ART.  C— JUDICIARY. 


XXIU 


sation,  wliicli  shall  not  be  increased  or  diminislied  durinjr  tlie  term 
for  wliicli  lie  sliall  have  been  elected  :  nor  shall  he  receive,  to  his 
use,  any  fees  or  perquisites  of  office,  or  other  compensation. 

Section  '2.   A  Slate   Engineer  and  Surveyor  shall  be  chosen  at    a  State  engineer. 
general   election,  and  shall  hold   his   office  two  years,  but  no  person 
shall  be  eh  cted  to  said  office  who  is  not  a  practical  engineer. 

Section  3.  Three  Canal  Commissioners  shall  be  chosen  at  the  ge-   Canal  Commis- 
neral  election   which  Fhall   be  held  next   al'ier  the  adoption  of  this  sioners.    Session 
Constitution,  one  of  whom  shall  hold  his  office  for  one  year,  one  for  ^^^  j  r  'g  3'j ' 
two  years,  and  one  for  three  years.     The  Commissioners  of  the  Ca-  ed.  p.  115. 
nal  Fund  shall  meet  at  the  Capitol  on  the  first  Monday  of  January, 
next  after  such  election,  and  determine   by  lot  which  of  said  Com- 
missioners shall  hold  his  office  for  one  year,  which  for  two,  and  which 
for  three  years;   and  there  shall  be  elected  annually  thereafter,  one 
Canal  Commissioner,  who  shall  hold  his  office  for  three  years. 

Section  4.  'I'hree  Inspectors  of  State  Prisons,  shall  be  elected  at  Inspectors  of 
the  general   election   which  shall  be.  held  next  after  the  adoption  of  fiate  prisons, 
tins  Constitution,  one  01  whom  shall  hold  his  office  for  one  year,  one  tenure  of  office, 
for  two  years,  and  one  for  three  years.      The  Governor,  Secretary  of 
State,  and  C"omptroller,  shall  meet  at  the  Capitol  on  the  first  Mon- 
day of  January  next  succeeding  such  election,  and  determine  by  lot 
which  of  said  Inspectors  shall  hold  his  office  for  one  year,  which  for 
two,  and  which  for  three  years  ,  and  there  shall  be  elected  annually 
thereafter  one  Inspector  of  State  Prisons,  who  shall  hold   his  office 
for  three  years  ;  said  Inspectors  shall  have  the  charge  and  superin- 
tendence of  the  State  prisons,  and  shall  appoint  all  the  officers  there- 
in.     All  vacancies  in    the  office  of  such  Inspector  shall  be  filled  by  Vacancy  how 
the  Governor,  till  the  next  election.  supplied. 

Section  .t.     The  Lieutenant  Governor,  Speaker  of  the  Assembly,  Commissioners 
Secretary  of  State,  (Comptroller,  Treasurer,  Attorney-General,  and  of  the  land  office. 
State    Engineer   and  Surveyor,  shall  be  the  Commissioners  of  the  ge^' f '  ^"  ^^^' 
Land  OfHce, 

The  Lieutenant  Governor,  Secretary  of  State,  Comptroller,  Trea-  Commissioners 
surer  and  Altorney-Geueral,  shall  be  the  Commissioners  of  the  Ca-  of  the  Canal  fund. 
nal  Fund.  Lc.2^' P' "^' 

The  Canal  Board  shall  consist  of  the  Commissioners  of  the  Canal  canal board  IR 
Fund,  the  State  Engineer  and  Surveyor,  and  the  Canal  Cgmmis-  S.  p.  114,  sec.  5. 
sioners. 

Section  6.  The  powers  and  duties  of  the  respective  boards,  and  of  Powers  and  du- 
the  several  officers  in  this  Article  mentioned,  shall  be  such  as  now   'ie**  of  boards  and 
are  or  hereafter  may  be  prescribed  by  law.  °    '^^'^''' 

Section  7.  The  Treasurer    may  be  suspended    from   office  by  the  Treasurer  may 
Governor,  during  the  recess  of  the  Legislature,  and  until  thirty  days  be  suspended  by 
after  the   commencement  of  the   next  session  of  the    Legislature,  d^^.S°^' ?  .Jo^' 
whenever  it   shall  appear  to  him  that   such    Treasurer   has,    in  any  123,  sec.  43.   ' 
particular,  violated  his  duly.     The  Governor  shall  appoint  a  compe- 
tent person  to  discharge  the  duties  of  the  office,  during  such  suspen- 
sion of  the  Treasurer. 

Section  8.  All  offices  for  the  weighing,  guaging,  measuring,  cull-  Certain  offices 
ing  or  inspecting  any  merchandize,  produce,  manufacture  or  com-  abolished, 
modity  whatever,  are  hereby  abolished,  and  no  such  office  shall  here- 
after be  created  by  law  :  but  nothing  in  this  section  contained,  shall 
abrogate  any  office  created  for  the  purpose  of  protecling  the  public 
health  or  the  interests  of  the  State  in  its  property,  revenue,  tolls,  or 
purchases,  or  of  supplying  the  people  with  correct  standards  of 
weights  and  measures,  or  shall  prevent  the  creation  of  any  office  for 
such  purposes  hereafter. 

ARTICLE  VL 

Section  1.  The  Assembly  sliall  have  the  power  of  impeachment.  Power  of  im- 
by  the  vote  of  a  majority  of  all  the  membej-s  elected.     The  court  for  peachment.  Art. 
the  trial  of  impeachments,  shall  be  composed  of  the  President  of  the   foMhe  trial  of 
Senate,   the    Senators,  "or   a    major  part   of  them,  and  the  judges  peachments. Art. 
of  the  court  of  appeals,  or  the  major  part  of  them.     On  the   trial  of  ^'  ®6c--1t 


jj^^  ART.  6— JUDICIARY. 

an  impeachment  apjainst  tlie  Governor,  tlie  Lieutenant-Governor 
shall  not  act  as  a  member  of  the  court.  No  judicial  officer  shall  ex- 
ercise his  office  after  he  shall  have  been  impeached,  until  he  shall  have 
been  acquitted."    Hefore  the  trial  of  an  impeachment,  the  mnmhers  of 

Procee-linss  enl    the  court  shall  take  an  oath  or  affirmation,  truly  and  imparlially  to  try 

secf™^'^'  ^^'  '  the  impeachment,  according  to  evidence  ;  and  no  person  shall  be  con- 
victed, without  the  concurrence  of  two- thirds  of  the  members  present. 
Judgment  in  cases  of  impeachment  shall  not  extend  further  than  to  re- 
moval from  office,  or  removal  from  office  and  disqualification  to  hold 
and  enjoy  any  office  of  honor,  (rust  or  jirofit  under  this  State  :  but  the 
party  "  impeached,"  shall  be  liable  to  indictment,  and  punishment 
according  to  law. 

Court  of  appealp;  Section  2.  There  shall  be  a  court  of  appeals,  composed  of  eight 
judges,  of  whom  four  shall  be  elected  by  the  electors  of  the  State  for 
eight  years,  and  four  selected  from  the  class  of  Justices  of  (he  Su- 

Chief  judge,  &Ck  prtme  Court  having  the  shortest  time  to  serve.  Provision  shall  be 
made  by  law,  for  designating  one  of  the  number  elected,  as  chief 
judge,  and  for  selecting  such  Justices  of  the  Supreme  Court,  from 
time  to  time,  and  for  so  classifying  those  elected,  that  one  shall  be 
elected  every  second  year. 

Supreme  court  of       Section  3.  There  shall  be  a  Supreme  Court  having  general  juris- 

law  and  equity.     ^.^^-^^  -^  ,^^  ^^, ^  ^^^-^^^ 

Judicial  districts.        Section  4.  The  Slate  shall  be  divided  into  eight  judicial  districts, 
of   which    the  city    of   New-York    shall    be   one:  the  others   to  be 
bounded  by  county  lines,  and   to  be  compact  and  equal  in   popula- 
Four  justices  in     tion  as  nearly  as  may   be.      There  shall  be  four  Justices  of  the  Su- 
each district.         preme  Couri  in  each  district,  and  as  many  more  in  the  district  com- 
posed of  the  city  of  New  York,  as  may  from  time  to  time  be  author- 
ized bylaw,  but  not  to  exceed  in  the  whole  such  number  in  propor- 
tion to  its  population,  as  shall  be  in  conformity  with  the  number  of 
such  judges  in  the  residue  of  the  State  in    proportion  to   its  jiopula- 
ClaBsification         tion.     They  shall  be   classified  so  that  one  of  the  Jusliees  of    each 
Ice '^'^"'^*^  "'  "^'    disirict  shall  go  out  of  office  at  the   end  of  every  two  years.     After 
the  expiration  of  their  terms    under  such  classification,  the  term  of 
their  office  shall  be  eight  years. 
Jurisdiction  and         Section  5.  The  Legislature   shall   have  the  same  powers  to  alter 
proceediii5.s  how       j  regulate  the  jurisdiction   and  proccedinjxs  in  law  and  equity,  as 
regulated.  . ,         ,  ■        ,    r  j  ^ 

they  have  heretofore  possessed. 
Justice  to  preside        Section  6.   Provision  may  be    made   by  law  for   designating,  from 
how  designated.     ^-^^^^  ^^  ^j^^p^  ^^^^  ^j.  ^^^.^  ^^  ^^^^  ^^^^^  Justices,  who  is  not  a  Judge  of 

the  court  of  ajipcals,  to  jiresido  at  the  general  terms  ol  the  said 
General  term  of  court  (o  ho  held  in  the  several  districts.  Any  three  or  more  of  the 
sup.  court.  ggjj  Justices,  of  whom  one  of  the  said  Justices  so  designated  shall  al- 

ways be  one,  may  hold  such  general  terms.  And  any  one  or  more 
couri's'of'oyer  ^  of  the  Justices  may  hold  special  terms  and  circuit  courts,  and  any 
and  terminer.  one  of  them  may  preside  in  courts  of  oyer  and  terminer  in  any  county. 
Compensation  of  Section  7.  Tlie  Judges  of  the  court  of  appeals  and  Ju^tices  of  the 
judgea  and  juKii-  supreme  court  .'■hall  severally  receive  at  staled  times  for  their  ser- 
"*  vices,  a  com])enH.itiriii  to  he    established    bylaw,  which  shall  not  be 

increased  or  diminiKlied  during  their  continuance  in  office. 
To  hold  no  other  Section  8.  'J'hey  shall  not  liold  any  other  office  or  public  trust. 
ofBce  and  have  j\]|  votes  for  oillier  of  them,  for  any  elective  office  (except  that  of 
"oiiiuncnt "'  ''^'  Justice  of  the  su|ir«'ine  court,  or  Judge  of  the  court  of  appeals.)  giv- 
en by  the  legislature  or  (he  people,  shall  be  void.  They  shall  not 
vvho  "lay  iirac-  exercise  any  power  of  apjxiintmcnt  to  public  office.  Any  male  citi- 
e 'aw.  zen  of    the  .'ige  of  twenty-one  years,  of   good    moral  character,  and 

'**  who    |)o.sHcsH<'s  Ihe    reipiisitf^   (|iialili(;,itioii8   of   learning  and  ability, 

bHuII  be  entitled  to  admisHion  to  practice  in  all  the  courts  of  this  State. 
ClnFiiificaiinn  of  Section  !i.  'J'lic  claNsification  of  the  Justices  of  the  sii|)rem(!  court  ; 
ju«iico<,  &  icrriiH  ^\^f.  (imcs  and  place  of  holding  thi!  terms  of  the  court  of  appeals, 
court'!'^"'""'  and  of  the  general  and  special  terms  of  the  supreme  court  within  tho 

ticvcral  disiiictH,  and  the  circuit  courts  and  courts  of  oyer  and  teriiii- 
ner   within  the  several  counties,  shall  he  provided  for  by  hiw. 
TcHtimony  In  Section  10.  The  te-liniony  in  ciiuity  casca   fchall  bo  taken  in  like 

<)f|uuy  cwfcy.         jnanucr  bh  iu  cases  at  law. 


ART.  6.— JUDICIARY.  XXV 

Section  1 1.  Justices  of  the  supreme  court  and  .Iiidgcs  of  tlie  court  Judges  of  the 
of  appeals,  may  be  removed  by  concurrent  resolution  of  both   Houses  "'",'.'  K  appeals 
of  the  LejTisUuure,  if  two-thirds  of  all   the    members  elected  to  the   the  supreme 
Assembly  and  a  majority  of  all  the  members   elected  to  the  Senale  court  removable 

concur  therein.     All  judicial  officers,  except  those  mentioned  in  this    I^,  pi,!",,' 
I  *    I       i»  ITT  IT'  An.  1,  sec.  io. 

section,  and  except  Justices  ol  the  reace,  and  Jud^res  and  Justices  judicj^i  qav 
of  inferior  courts   not  of  record,  may  be   removed  by  the  Senate,  on   ri:movable  by 
the    recommendation  of  the    Governor:    but   no    removal    shall   be   Gov.  and  senate. 
made   by  virtue   of  this  section,  unless  the  cause  thereof  be  enter- 
ed   on    the  journals,   nor    unless    the   party    complained    of,    shall   To  be  heard  in 
have    been    served    with    a  copy    of   the    complaint    against    him,   i,s45"'n  46  ^^* 
and    shall    have    had    an    opportunity  of   being    heard    in    his  de-   Anie'iidment. 
fence.       On    the    question    of   removal,    the    ayes    and    noes    shall 
be  entered  on  the  journals. 

Section  12.   The  Judges  of  the   court  of  appeals    shall  be  elected  Election  of 
by  the  electors  of  tlie  State,  and  the   Justices  of  the  supreme  court  co'uft^'o'f  anneal" 
by  the  electois  of  the  several  judicial  districts,  at  such  times  as  may  and  justices  of 
be  i)re.scribed  by  law.  ''i"  sup.  court. 

Section  l.'j.    In  case  the  office  of  any  judge  of  the  court  of  appeals.  If  vacant,   Gov. 
or  Justice  of  the  supreme  court  shall   become  vacant  before  the  ex-  '""^  appoint, 
piration  of  the  regular  term  fur  which   he  was  elected,  the  vacancy 
may  be  filled  by  appointment  by  the  Governor,  until  it  shall  be  sup- 
plied at  the  next  general  election  of  Judges,  when  it  shall  be  filled  by 
election  for  the  residue  of  the  unexpired  term. 

Seciion  14.   Tliere  shall  be  elected    in  each  of  the  counties  of  this   County  judges  to 
State,  except  the  city  and  county  of  New-York,  one  county  iudsfe,   \^^  eler.ied  and 
I        1     ij  1     T  I  1  •      £12       r      r  ■  ij       I     11  1     ij  »i  .1    have  powers  of 

who  shall  hold  his  office  for  four  years.   He  shall  hold  the  county  court  surrogate. 

and  perform  the  duties  of  the  oflice  of  surrogate.     The  county  court 

sliall  have  su  .h  jurisdiction  in  cases  arising  in  Justices'  Courts,  and  in  Jurisdiction. 

special  cases,  as  the    Legislature   may  prescribe,  but  shall  have  no 

original  civil  jurisdiction,  except  in  such  special  cases. 

The  county  Judge,  with  two   Justices  of   the  feace,  to   be  desig-    Courts  of ses- 
nated  according  to  law,  may  hold  courts  of  sessions  with  such  crimi- 
nal jurisdiction  as  the  Legislature  shall  prescribe,  and  perforin  such 
other  duties  as  may  be  required  by  law. 

The  county  Judge  shall  receive  an  annual  salary,  to   be  fixed  by  Sitary  of  county 
the  board  of  supervisors,  which  shall  be  neither  increased  nor  dimin-  J"''?'^- 
ished  during  his  continuance  in  office.     The  Justices  of  the  Peace  for 
services  in  courts  of  sessions,  shall  be  paid  a  per  diem  allowance  out 
of  the  county  treasury. 

In  counties  having  a  population  exceeding  forty  thousand,  the  Le-  Surrogates  in 
gislature  may  provide  for  the  election  of  a  separate  officer  to  perforin  "^^rtam  counties, 
the  duties  of  the  office  of  surrogate. 

The  legislature   may  confer   equity  jurisdiction  in   special    cases  Equity  jurisdic- 

upon  the  county  Judge.  ^[[Jj^^o'  '=°""'y 

Inferior  local  courts,  of  civil  and  criminal  jurisdiction  may  be  es-   ^,, '  '      ,„ 
.11-111        I        r       •  1  •         •  •  1  ,  .-       City  courts 

tablished  by  the    Legislature   in   cities;  and   such  courts,  except  for 

the  cities  of  New  York  and  Buffitio,  shall  have  an  uniform  organi- 
zation and  jurisdiction  in  such  cities. 

Section  15.  The  Legislature  may,  on  application  of  the  board  of  Officers  lo  per- 
supeivisors,  provide  for  the   election  of  local  officers,  not  to  exceed   co'uui'vTiid"^eand 
two  in  any  county,  to  discharge  the  duties  of  county  Judge  and  of  surrogate.  ° 
surrogate  in  cases  of  their  inability,  or  of  a  vacancy,  and  so  exercise 
such  other  powers  in  special  cases  as  may  be  provided  by  law. 

Section  lU.  The  legislature  may  reorganize  the  judicial  districts  Judicial  district 
at  the  first  session  after  the  return  of  every  enumeration  under  this  f"^?  ^^  reorgan- 
Constitution,  in  the  manner  provided  for  in  fourth  section  of  this  arti- 
cle, and  at  no  other  time;  and  they  may,  at  such  session,  increase 
or  dimini.sh  the  dumber  of  districts,  but  such  increase  or  diminution 
shall  not  be  more  than  one  district  at  any  one  time.  Each  district 
shall  have  four  Justices  of  the  Supreme  (^ourt ;  but  no  diminution 
of  the  districts  sliall  have  the  etFect  to  remove  a  Judge  from  office. 

Section  17.  "  The  electors  of  the  several  towns"  shall,  at  their  an-   Justices  of  the 
nual"  town"  meet'ng,  and  in  such  manner  as  the  l,eiri^lature  may  di-  £fn  anj^"emii-e°o« 
rect,  elect  Justices  of  the  Peace,  whose  term  of  office  shall  be  four  office.    Amend- 


XXVi 


ART.  7.— DEBT,  REVENUES  AND  CANALS. 


ment  No.  1. 
Ass'y  Jour,  '"i7, 
p.  1140.  do.  '33, 
Doc.  No.  300. 
Sen.  Jour.  '41;, 
Doc.  72.  6  Cow. 
&42.  9.  Cow.  041. 
2  Hill,  369. 
How  removed. 

Judicial  officers 
in  cities  to  be 
elected,  23  Wend. 
414.    26  Wend. 
599. 

County  clerks  to 
be  clerks  of  su- 
preme court 
Clerk  of  the  court 
of  appeals. 


No  judicial  offi- 
cer except  justi- 
ces of  the  peace 
to  receive  fees. 
Decisions  of  city 
courts  of  record, 
how  reviewed. 

Publication  of 
laws  and  deci- 
sions. 


Tribunals  of  con- 
ciliation. 


Commissioners 
to  revise  practice 
and  pleadings. 


Can.'il  revenues, 
Abh'x  Jour.  Ml. 
2GC,  12(;7.  do.  '42 
p.  109,  «{?.  AKH'y 
I)oc.  ij,  No  K■^, 
If*.     LawH  '42, 
chap.  11 1.    A-m'v 
Jour.  '4.'),  p.  21.1, 
70Ct.  do.  '44,  f. 
771.     I,aWH  '44, 
chap. .'114.     As.i'y 
Jour.  ''\r>,  l.'tiy. 
Sinkini;  futiil  lo 
pay  curia!  debt. 


Siiikins;  fund  to 
)>av  geaoral  fund 
debt. 


5'ears.  "  In  case  of  an  election  to  fill  a  vacancy  occurring  before 
the  e.x'piration  of  a  fnll  term,  they  siiall  hold  for  the  rtsidue  of  the 
unexpired  term.  Their  number  and  classification  may  be  rej/ulated 
bylaw.  Justices  of  the  Peace,  and  Judges  or  Justices  of  inferior 
courts,  not  of  record,  and  their  clerks  may  be  removed,  (after  due 
notice  and  an  opportunity  of  being  heard  in  their  defence)  by  such 
county,  city  or  State  courts  as  may  be  prescribed  by  law,  for  causes 
to  be  assigned  in  the  order  of  removal. 

Section  18.  All  judicial  officers  of  cities  and  villages,  and  all  such 
judicial  officers  as  n:ay  be  created  therein  by  law,  shall  be  elected  at 
such  times  and  in  such  manner  as  the  legislature  may  direct. 

Section  19.  The  clerks  of  the  several  counties  of  this  state  shall 
be  clerks  of  the  Supreme  Court,  with  such  powers  and  duties  as  shall 
be  prescribed  by  law.  A  clerk  for  the  Court  of  Appeals,  to  be  ex- 
officio  clerk  of  the  Supreme  Court,  and  to  keep  his  office  at  the  seat 
of  government,  shall  be  chosen  by  the  electors  of  the  state  ;  he  shall 
hold  his  office  for  three  years,  and  his  compensation  shall  be  fi.xed  by 
law  and  paid  out  of  the  public  treasury. 

Section  20.  No  judicial  officer,  except  justices  of  the  peace,  shall 
receive  to  his  own  use  any  fees  or  perquisites  of  office. 

Section  21.  The  legislature  may  authorize  the  judgments,  de- 
crees and  decisions  of  any  local  inferior  court  of  record  of  original 
civil  jurisdiction,  established  in  a  city,  to  be  removed  for  review  di- 
rectly into  the  Court  of  Appeals 

Section  22.  The  legi.«lature  shall  provide  for  the  speedy  publica- 
tion of  all  statute  laws,  and  of  such  judicial  decisions  as  it  may  deem 
expedient.  And  all  laws  and  judicial  decisions  shall  be  free  for  pub- 
lication by  any  person. 

Section  23.  Tribunals  of  conciliation  may  be  established,  with 
such  powers  and  duties  as  may  be  prescribed  by  law  ;  but  such  tri- 
bunals shall  have  no  power  to  render  judgment  to  be  obligatory  on 
the  parties,  except  they  voluntarily  submit  their  matters  in  difference 
and  agree  to  abide  the  judgment,  or  assent  thereto,  in  the  presence 
of  such  tribunal,  in  such  cases  as  shall  be  prescribed  by  law. 

Section  24.  The  legislature  at  its  first  session  after  the  adoption 
of  this  Constitution,  shall  provide  for  the  aiipointment  of  three  com- 
missioners, whose  duly  it  shall  be  to  revise,  reform,  simplify  and 
abridge  the  rules  and  practice,  pleadings,  forms  and  proceedings  of 
the  courts  of  record  of  this  state,  and  to  report  thereon  to  the  legis- 
lature, subject  to  their  adoption  and  modification  from  time  to  time. 

Section  25.  The  legislature  at  its  fir.^t  session  aller  the  adoption 
of  this  Constilution,  shall  provide  for  the  organization  of  ihe  Court  of 
Ajjpeals,  and  for  transferring  to  it  the  business  pending  in  the  Court 
for  the  Correction  of  lOrrors,  and  for  the  allowance  of  wrils  of  error 
and  appeals  to  the  t^ourt  of  Appeals,  from  the  judgments  and  decrees 
of  the  present  Court  of  Chancery  and  Supretne  Court,  and  of  the 
courts  that  may  be  organized  under  this  Constitution. 

ARTICLE  VIL 

Section  1.  After  paying  the  expenses  of  collection,  superinten- 
dence and  ordinary  rcjiairs,  there  .shall  be  appropriated  and  set  ajiart 
in  each  fiscal  year,  nut  of  the  revenues  of  the  state  canals,  commenc- 
ing on  the  firxt  day  of  June,  one  thousand  eight  hundred  and  forty- 
hIx,  the  sum  of  om-  million  and  three  hundred  tluui-iand  dollars,  nnlil 
the  fir.sl  day  of  .hni"',  o:ie  thousand  eight  huiidri'd  and  fifty -live,  and 
from  liiul  time  the  sum  of  one  nnllion  and  seven  hundred  thousand 
dollars  in  each  fiscal  year,  as  a  sinking  fuiul,  to  pay  the  intcr''St  and 
redeem  the  principal  of  that  pirl  of  the  state  debt  called  the  canal 
debt,  UH  it  existed  at  the  time  first  aforesaid,  and  including  three 
hundred  Ihonsmid  dollars  then  to  be  borrowed,  until  the  same  shall 
bo  wholly  paid  ;  and  the  principal  and  income  of  the  said  sinking 
fund  HJiall  be  Ha'-riilly  upplu'd  to  (hat  purpose. 

Section  2.  After  complying  with  the  provisions  of  the  first  section 
of  this  article,  there  hhall  be  appropriated  and  set  apart  out  of  the 


ART.  7.— DEBT,  REVENUES  AND  CANALS.  XXvH 

surplus  revenues  of  tlie  state  canals,  in  each  fiscal  year,  commencing 
on  tlie  first  day  of  June,  one  llionsand  ei£rht  linndred  and  forly-six, 
the  sum  of  three  hundred  and  fifty  thousand  dollars,  until  the  time 
when  a  sufficient  sum  shall  have  been  appropriated  and  set  apart, 
under  the  said  first  section,  to  pay  the  interest  and  extinguish  the 
entire  principal  of  the  canal  debt;  and  after  that  period,  then  the 
sum  of  one  million  and  five  hundred  thousand  dollars  in  each  fiscal 
year,  as  a  sinking  fund,  to  pay  the  interest  and  redeem  the  principal 
of  that  part  of  the  state  debt  called  the  general  fund  debt,  including 
the  debt  for  loans  of  the  state  credit  to  railroad  companies  which  have 
failed  to  pay  the  interest  thereon,  and  also  the  contingent  debt  on 
state  stocks  loaned  to  incorporated  companies  which  have  hitherto 
paid  the  interest  thereon  whenever  and  as  far  as  any  part  thereof 
may  become  a  charge  on  the  treasury  or  general  fund,  until  the  same 
shall  be  wholly  paid  ;  and  the  principal  and  income  of  the  said  last 
mentioned  sinking  fund  shall  be  sacredly  applied  to  the  purpose  afore- 
said ;  and  if  the  payment  of  any  part  of  the  moneys  to  the  said  sink-  If  rieferred  to  ba 
ing  fund  shall  at  any  time  be  deferred,  by  reason  of  the  priority  re-  fedy  iiuerest'^'^ 
cognized  in  the  first  section  of  this  article,  the  sum  so  deferred,  with 
quarterly  interest  thereon,  at  the  then  current  rate,  shall  be  paid  to 
the  last  mentioned  sinking  fund,  as  soon  as  it  can  be  done  consis- 
tently with  the  just  rights  of  the  creditors  holding  said  canal  debt. 

Section  3.     After  paying  the  said  expenses  of  superintendence  and  $200,000  yearly 
repairs  of  the  canals,  and  the  sums  appropriated  by  the  first  and  se-  t"  support  of  go- 
cond  sections  of  this  article,  there  shall  be'paidoutof  the  surplus 
revenues  of  the  canals,  to  the  treasury  of  the  state,  on  or  before  the 
thirtieth  day  of  September,  in  each  year,  for  the  use  and  benefit  of 
the   general  fund,  such  sum,  not  exceeding  two    hundred  thousand 
dollars,  as  may  be  required  to  defray  the  necessary  expenses  of  the 
state  ;  and  the  remainder  of  the  revenues  of  the  said  canals  shall,  in  Residue  to  corn- 
each  fiscal  year,  be  applied,  in  such  manner  as  the  legislature  shall  J?,'^^ars^Jnent^"'Jjj 
direct,  to  the  completion  of  the  Erie  Canal  enlargement,  and  the  Ge-   Genesee  Valley 

nesee  Valley  and  Black  River  canals,  until  the  said  canals  shall  be  and  Black  River 

I   ,    J  canals. 

completed. 

If  at  any  time  after  the  period  of  eight  years  from  the  adoption  of  After  8  years 
this  Constitution,  the  revenues  of  the  state,  unappropriated  by  this  $550,030  for  ex- 

•   I        I     11  1  m   ■      .  ,     J    r        .1  ir     t  J  penseaof govern- 

article,  shall  not  be  sutfacient  to  defray  the  necessary  expenses  ot  the  „ient. 

government,  without  continuing  or  laying  a  direct  tax,  the  legislature 
may,  at  its  discretion,  supply  the  deficiency,  in  whole  or  in  part, 
from  the  surplus  revenues  of  the  canals,  after  complying  with  the 
provisions  of  the  first  two  sections  of  this  article,  for  paying  the  inte- 
rest and  extinguishing  the  principal  of  the  canal  and  general  fund 
debt  ;  but  the  sum  thus  appropriated  from  the  surplus  revenues  of 
the  canals  shall  not  exceed  annually  three  hundred  and  fifty  thou- 
sand dollars,  including  the  sum  of  two  hundred  thousand  dollars,  pro- 
vided for  by  this  section  for  the  expenses  of  the  government,  until 
the  general  fund  debt  s-hall  be  extinguished,  or  until  the  Erie  Canal 
enlargement  and  Genesee  Valley  and  Black  River  canals  shall  be 
completed,  and  after  that  debt  shall  be  paid,  or  the  said  canab;  shall 
be  completed,  then  the  sum  of  six  hundred  and  seventy-two  thousand 
five  hundred  dollars,  or  so  much  thereof  as  shall  be  necessary,  may 
be  annually  appropriated  to  defray  the  expenses  of  the  government. 

Section  4.  The  claims  of  the  state  against  any  incorporated  com-  Claims  against 
pany  to  pay  the  interest  and  redeem  the  principal  of  the  stock  of  the  corporations  not 
state  loaned  or  advanced  to  such  company,  shall  be  fairly  enforced, 
and  not  released  or  compromised  ;  and  the  moneys  arising  from  such 
claims  shall  be  set  apart  and  applied  as  part  of  the  sinking  fund  pro- 
vided in  the  second  section  of  this  article.  But  the  time  limited  for 
the  fulfilment  of  any  condition  of  any  release  or  compromise  hereto- 
fore made  or  provided  for,  may  be  extended  by  law. 

Section  5.     If  the  sinking  funds,  or  either  of  them  provided  in  this  If  sinking  funds 
article,  shall  prove  insufficient  to  enable  the  state,  on  the  credit  of  |"cre'^sed"by °  ^® 
such  fund,  to  procure  the  means  to  satisfy  the  claims  of  the  creditors  taxes, 
of  the  state,  as  they  become  payable,  the  legislature  shall,  by  equi- 
table taxes,  so  increase  the  revenues  of  the  said  funds  as  to  make 


xxviii  ART.  7.-DEBT,  REVENUES   AND   CANALS. 

tliem,  respectively,  sufficient  perfectly  to  preserve  the  public  faith. 
Every  contribiitiou  or  aHvance  to  the  canals,  or  tlieirdebt,  from  any 
source,  other  than  their  direct  revenues,  shall,  with  quarterly  interest, 
at  the  rates  then  current,  be  repaid    into  the  treasury,  for  the  use  of 
the  state,  out  of  the  canal  revenues  as  soou   as  it  can  be  done  con- 
sistently with  the  just  rights  of  the  creditors  holding  the  said  canal 
debt. 
Canals  not  to  be        iSertion  6.     The  legislature  shall  not  sell,  lease,  or  otherwise  dis- 
sold  or  leased.        ^^^^  ^^  ^^^^  ^P  ^^1^^  canals  of  the  state  ;  but  they  shall  remain  the  pro- 
perty of  the  stale  and  under  its  management,  forever. 
Salt  springs  not        Section  7.     The  legislature  shall   never  sell  or  dispose  of  the  salt 
to  be  sold.  springs  belonging  to  this  state.     The  lands  contiguous  thereto  and 

which  may  be  necessary  and  convenient  for  the  use  of  the  salt  springs, 
may  be  sold  by  authority  of  law  and  under  the  direction  of  the  com- 
missioners of  the  land  office,  for  the  purpose  of  investuig  the  moneys 
arising  ihf^refrom  in  other  lands  alike  convenient;  but  by  such  sale 
and  purchase  the  aggregate  quantity  of  tlie^e  lands  shall  not  be  di- 
minished. 
No  moneys  to  be        Section  8.     No  monej's  shall  ever  be  paid  out  of  the  treasury  of 
paid  without  ap-  y,jg  gfate,  or  any  of  its  funds,  or  any  of  tlie  funds  under  its  manage- 
propriation  by  ,',.•'  „  •'  •    .■         i       i  i 

law  within  two      nient,  except  in   pursuance  ol    an  appropriation   bv  law;   nor  unless 

years.  such  payment  be  made  within   two  years  next  after  tlie  passage  of 

such  apprnpriaiiou  act;  and  every  such  law  making  a  new  appro- 
priation, or  continuing  or  reviving  an  appropriation,  shall  distinctly 
specify  the  sum  appropiiated.  and  the  object  to  which  it  is  to  be  ap- 
plied ;  and  it  shall  not  be  sufficient  for  such  law  to  refer  to  any  other 
law  to  fix  such  sum. 
Credit  of  the  Section  9.     The  credit  of  tlie  state  shall  not,  in  any  manner,  be 

state  not  to  be       given  or  loaned  to,  or  in  aid  of  any  individual,  association  or  corpo- 
loaned.     Laws       rat  inn 
'27  p.  47;  '30,  p.  ration. 

22/.  Sen'.  Jotlr.  Section  10.  The  slate  may,  to  meet  casual  deficits  or  failures  in 
'38,  p.  416.  Doc.  revenues,  or  for  expenses  not  provided  for,  contract  debt.'i,  but  such 
Joiir  '39  Doc!  debts,  direct  and  contingent,  singly  or  in  the  aggregate,  shall  not,  at 
No.  110.  any  time,  exceed  one  million  of  dollars  ;   and  the  moneys  arising  from 

May  borrow  one  the  loans  creating  such  debts,  shall  he  applied  to  the  purpose  for 
million  dollars.      which  they  were  obtained,  or  to  repay  the  debt  so  coutracled,  and 

to  no  other  purpose  whatever. 
Debt  to  repel  in-        Section  II.      In   addition    to  the  above  limited  power  to  contract 
fusion.  debts,  the  slate  may  contract  debis  to  rc[)el  invasion,  suppress  insur- 

rection, or  defend  the  .«tatc  in  war  :  but  the  money  arising  from  the 
contracting  of  such  debts  shall  be  applied  to  ihe  purpose  for  which 
it  was  raised,  or  to  repay  such  debts,  and  to  no  other  purpose  what- 
ever. 
No  other  debt  Section  12.     Except  the  debts  specified  in  the  tenth  and  eleventh 

unles.s  amhoriz-  sections  of  this  article,  no  debt  shall  be  hereafter  contracted  by  or 
approved  by  the  "n  behalf  of  this  state,  unless  such  debt  shall  be  authorized  by  a  law 
people.  for  some  single  work  or  object,  to  be  distinctly  specified  therein,  and 

such  law  shall  impose  and   provide  for  the  collecUon  of  a  direct  an- 
nual tax  to  pay,  and  sufficient  lo  [)ay  the  interest  on  such  debt  as  it 
falls  due,  and  also  lo  pay  and  dischaigo   the  principal  of  such  debt 
within  eighteen  years  from  the  time  of  iho  c-ontracting  thereof. 
IIow  Bubmiitcd.  No  such  law  shall  lak(!  efTect  until   it  shall,  at  a  general  election, 

have  Ikm'u  submitted  lo  the  people,  and  have  received  a  majority  of 
all  Iho  volcH  ca.'st  for  and  against  it,  at  such  election. 
IIowBHch  bill  to        On  the  final  passage  of  such  bill  in  eitlier  hou.so  of  the  legislature, 
be  paaacu.  j^|,y  rpicstioii  shall  be  taken  by  ayes  and   noes,  to  be  duly  entered  on 

the.  journal.s  thereof,  and  shall  bo;   "  Shall  thi.s  bill  pass,  and  ought 
the  Kamo  to  receive  the  sanction  of  the  people?" 
Mow  far  reiieal-         The  legiHlatiire  may  at   any  lime,  after  the  a[)provaI  of  such  law 
'"'"''''•  by  the  people,  if  no   debt  shall   liave  been  contracted  in  ptirsnance 

thereof,  re|ieal  the  Hamc  ;  and  may  at  any  time,  by  law,  forbid  the 
contracting  of  any  further  debt  or  lial)ility  under  such  law  ;  but  the 
lax  impoHed  by  hucIi  act,  in  proportion  lo  the  debt  and  liability  wliicli 
may  havi'  been  eonlracted  in  pursuance  of  such  law,  shall  remain  in 
force  uiid  be  irrepcuiuble,  and  be  aiiiuially  collected  until  the  proceeds 


ART.  8.— CORPORATIONS.  Xxix 

thereof  sliall  have  made  the  provision  liereiii  before  specified,  to 
pay  and  discharge  the  interest  and  principal  of  such  debt  and  lia- 
bihty. 

The  money  arising  from  any  loan  or  slock  creating  sucli  debt  or  Money  borrow- 
liability,  siiall   be   applied  to   tiie  work  or  object  specified  in  the  act  ^^'  ''°"^  applied. 
authorizing  such  debt  or  habihty,  or  for  tiie    payment  of  such  debt 
or  liabiHty,  and  for  no  other  purpose  whatever 

No  such  law  shall  be   submitted  to   be   voted   on,  within   three  When  bill  sub- 
months  alter  ils  passage,  or  at  any  general  election,  when  any  other  mittedtoihe  pco- 
law  or  any  bill  or  any  amendment  to  the  Constitution,  shall  be  sub-  ^'  '^' 
mitted  to  be  voted  for  or  against. 

Section  13,     Every  law  which  imposes,  continues  or  revives  a  tax,  Tax  billa^ 
shall  distinctly  stale  the  tax  and  the  object  to  which  it  is  to  be  ap- 
plied, and   it  shall  not  be  sufficient  to  refer  to  any  other  law  to  fix 
such  tax  or  object. 

Section  14.    On  the  final  passage  in  either  house  of  the  legislature,  Tliree-fifths  ne- 

of  every  act  which  imposes,  continues  or  revives  a  tax,  or  creates  a  '^^'^^^^'V  '.'"'  ^ 
J  ,^      ■'    ,  I  ,•  •  ■   ,•  r  quorum  ni  cer- 

debt  or  charge,  or  makes,  continues  or  revives  any  appropriation  ot  tain  cases. 

public  or  trust-money  or  property,  or  releases,  discharges  or  com- 
mutes any  claim  or  demand  of  the  state,  the  question  shall  be  taken 
by  ayes  and  noes,  which  shall  be  duly  entered  on  the  journals,  and 
three-fiths  of  all  the  members  elected  to  either  house,  shall,  in  all 
such  cases,  be  necessary  to  constitute  a  quorum  therein. 

ARTICLE  VIII. 

Section  1.     Corporations  may  be  formed  under  general  laws  ;  but  Corporations  to 
shall  not  be  created  by  special  act,  except  for  municipal  purposes,  ^^  formed  under 

,.  ,  -".i-j  .r.ii         ii  .U1-.       c  eeneral  laws. 

and  in  cases  where  in  the  judgment  of  the  legislature,  ihe  objects  ot  ge„,  jquj.  135 

the  corporation  cannot  be  attained  under  general  laws.     All  general  Doc.  No.  4.    do. 

laws  and  special  acts  passed  pursuant  to  this  section,  may  be  altered  'p^-,    Uoc.  No.  8. 

J.  ■         ^    ,■  II  '         .'  Ass'yJour.  '5, 

from  time  to  time  or  repealed.  p. 512.  Sen. Jour- 

Section  2.     Dues  from  corporations  shall  be  secured  by  such  indi-  '24,  p.  315. 

vidual  liability  of  the   corporators  and  other  means  as  may  be  pre-  ^^'"^y  ^^  repealed. 

scribed  by  law.  Liability  of  cor- 

-.        •        .,        fr.1       ,  ,.  1    ■     .1  •         .•   1       I     11  1       poratois.     Sen. 

feection  J.      Ihe  term  corporations  as  used  in  this  article  snail  be  jour.  '44,  p.  2.36. 

construed  to  include  all  associations  and  joint-stock  companies  hav-  do.  '46,  Doc  13, 

ing  any  of  the  powers  or  privileges  of  corporations  not  possessed  by  ^''  Sen.  bills '4o, 

individuals  or  partnerships.    And  all  corporations  shall  have  the  right  T)„fili,j„„  of 

to  sue  and  shall  be  subject  to  be  sued  in  all  courts  in  like  cases  as  corporation. 

natural  persons. 

Section  4.  The  Legislature   shall    have  no  power  to  pass  any  act  No  special  char- 
granting  any  special  charter  for  banking  purposes  ;  but  corporations  'f  "^  *,"' i^^".'^',l\f * 
or   associations   may  be   formed    for  such    purposes    under   general  Doc.  No.  303  and 
laws.  31M.    do.  '38,  No. 

Section  5.  The   Legislature  shall  have  no  power  to  pass  any  law  |n""T^''^^^T!J  "'P^'"' 
sanctioning  in  any  manner,  directly  or  indirectly,  the  suspension  of  Se'n.  Joiir. '37 
specie  payments  by  any  person,  association   or   corporation   issuing  Doc.  No.  55. 
bank  notes  of  any  description.  fi'"  "rc^Vif^' 

Section  6.  The  Legislature  shall    provide  by  law  for  the  registry  _     '      '     ' 

-,,,.,,  ..",  .-        -I.-  JIM   Suspension  of 

of  all  bills  or  notes  issued  or  put  111  circulation  as  money,  and  shall  specie  payments. 

require  ample  security  for  the  redemption  of  the  same  in  specie.         Sen-  Jour.  '37,  p. 

Section  7.  Tlie  stockholders  in  every  corporation  and  joint-stock  f.^^i'  526.    Laws 

association  for  banking  purposes,  issuing  bank  notes  or  any  kind  of  „  ' .    "^    ' 

J-.      .        •        ]    .  rl       .  1      c     .  J  r  T  Registry  and  se- 

paper  credits    to  circulate  as  money,  alter  the  first  day  of  January,  cuntyofbank 

one  thousand  eight  hundred   and   filty,  shall  be  indi\i(Jually  respon-  notes. 
sible  to  the  amount   of  their   respective   share  or  shares  of  stock  in  Stockholders  in 
any  such  corporation  or  association,  for  all  its  debts  and  liabilities  of  banking  cornora- 
1-1.        .jr...!  -jc.j  /-T  ..I  tions  mdividual- 

every  kind  contracted  alter  the  said  iirst  day  of  January,  one  thou-  ly  responsible. 

sand  eight  hundred  and  fifty. 

Section  8.   In  case  of  the  insolvency  of  any  bank  or  banking  as-  Bill  holdtrs  to  be 
sociation,  the  bill-holders  thereof  shall  be  entitled   to  preference  in  first  paid. 
payment  over  all  other  creditors  of  such  bank  or  association. 


XXX 


ART.  9.— SCHOOL  FUND,  &,c. 


Cities  and  villa- 
ges, and  restric- 
tion on  their 
power  of  taxa- 
tion. 


Section  9.  It  shall  be  the  duty  of  the  Legrislature  to  provide  for 
the  organization  of  cities  and  incorporated  villages,  and  to  restrict 
their  power  of  taxation,  assessment,  borrow^ing  money,  contracting 
debts  and  loaning  their  credit,  so  as  to  prevent  abuses  in  assess- 
ments and  iu  contracting  debt  by  such  municipal  corporations. 


ARTICLE  IX. 


Com.  School, 
Literature,  and 
U.  S  Deposite 
Funds.    Art.  7, 
§  10.   Ass'y  Jour. 
•23,  p.  4.W,  713, 
769.     Sen.  Jour. 
'2i,  p.  494.    1  R. 
S.  p.  196. 


Section  I.  The  capital  of  the  common  school  fund,  the  capital  of 
the  literature  fund,  and  the  capital  of  the  United  States  deposite 
fund,  shall  be  respectively  preserved  inviolate.  The  revenue  of  the 
said  common  school  fund  shall  be  applied  to  the  support  of  common 
schools  ;  the  revenues  of  the  said  literature  fund  sliall  be  applied  to 
the  support  of  academies,  and  the  sum  of  twenty-five  thousand  dol- 
lars of  the  revenues  of  the  United  States  deposite  fund  shall  each 
year  be  appropriated  to  and  made  a  part  of  the  capital  of  the  said 
common  school  fund. 


Sheriffs,  county 
clerks,  coroners, 
.and  district  attor- 
neys. Art.  4,  §8, 
2  Wend.  266. 
11  do.  133. 
24  do.  215. 


How  removed, 
6  Hill,  49. 


Local  officers  to 
be  elected  or  ap. 
pointed  in  their 
respective  locali- 
ties. 


Other  officers  to 
be  elected  or  ap- 
pointed. Art.  4, 
§15. 


Duration  of  offi- 
ces.   Art.  4,  §  16. 


Time  of  electing 
ofllcers. 


Vacancies,  how 
■uppliiMl,  AHH'y 
Jour.  'Xi.  l)uc. 
No.  300- 


Political  year. 
Art  '2,  MC.  H. 


Hemival  of  offi- 
ccro. 


ARTICLE  X. 

Section  1.  Sheriffs,  clerks  of  counties,  including  the  register  and 
clerk  of  the  city  and  county  of  New  York,  coroners,  and  "  district 
attorneys,"  shall  be  chosen  by  the  electors  of  the  respective  coun- 
ties once  in  every  three  years,  and  as  often  as  vacancies  shall  hap- 
pen. Sheriffs  shall  hold  no  other  office,  and  be  ineligible  for  the 
next  three  years  after  the  termination  of  their  offices.  They  may 
be  required  by  law  to  renew  their  security  from  time  to  time  ;  and 
in  default  of  giving  such  new  security,  their  offices  shall  be  deemed 
vacant.  But  the  county  shall  never  be  made  responsible  for  the 
acts  of  the  sheriff. 

The  Governor  may  remove  any  officer,  in  this  section  mentioned, 
within  the  term  for  which  he  shall  have  been  elected  ;  giving  to 
such  officer  a  copy  of  the  charges  against  him,  and  an  opportunity 
of  being  heard  in  his  defence. 

Section  2.  All  county  officers  whose  election  or  appointment  is 
not  provided  fur  by  this  Constitution,  shall  be  elected  by  the  elect- 
ors of  the  respective  counties,  or  appointed  by  the  boards  of  super- 
visors, or  other  county  authorities,  as  the  Legislature  shall  direct. 
All  city,  town  and  village  officer^,  whose  election  or  appointment  is 
not  provided  for  by  this  Constitution,  shall  be  elected  by  the  elect- 
ors of  such  cities,  towns  and  villages,  or  of  some  division  thereof,  or 
appointed  by  such  authorities  thereof,  as  the  Legislature  shall  de- 
signate for  that  pur|)ose.  All  other  officers  whose  election  or  ap- 
pointment is  not  provided  for  by  this  Constitution,  and  all  officers 
whose  offices  may  hereafter  bo  created  by  law,  shall  be  elected  by 
the  peojtic,  or  appointed,  as  the   Logi.iluture  may  direct. 

Suction  'i.  When  the  duration  of  any  office  is  not  provided  by  this 
Constitution,  it  may  be  declared  liy  law,  and  if  not  so  declared, 
such  office  .shall  be  held  during  the  pleasure  of  the  authority  making 
the  appointment. 

Section  ■\.  The  time  of  electing  all  officers  named  in  this  article 
shall  b(j  prescribed  by  law. 

Section  .').  The  Legislature  shall  provide  for  filling  vacancies  in 
office;  and  in  case  of  elective  ollicers,  no  person  a|)pointed  to  fill  a 
vacimey  shall  hold  his  office,  by  virtue  of  such  ap|>ointnient,  longer 
than  the  commencement  of  the  political  year  next  succeeding  the 
first  annual  election  after  the  happening  of  the  vacancy. 

Section  (').  The  political  year  and  "  legislative  term"  shall  begin  on 
the  first  of  January,  and  the  Legislature  shall  every  year  a.ssembic 
on  the  firHt  Tue.sduy  in  January,  unlets  a  different  day  shall  bo  ap- 
pointed by  law. 

Ser;lion  7.  I'rovision  shall  bo  mado  by  law  for  the  removal  for 
miNCondnct  or  inalverHation  in  ofiiee  of  all  officers  (except  jiidicial) 
whose  powers  and  duties  are  nut  local  or  legislative,  and  wlio  shall 


ART.  10— OF  SHERIFFS  AND  OTHER  OFFICERS,  &c. 


XXXI 


be  elected   at  general   elections,  and   also  for  supplying  vacancies 
created  by  such  removal. 

Section  8    'I'lio  Legislature  raay  declare  the  cases  in  which   any  What  tleemed  a 
office  isiiall  be  deemed  vacant,  where  no  provision  is   made  for  that  vacancy, 
purpose  ia  this  Constitution. 

ARTICLE  XI. 


Section  1.  The  militia  of  this  State  shall,  at  all  times  hereafter, 
be  armed  and  disciplined,  and  in  readiness  for  service  ;  but  all  such 
inhabitants  of  this  State,  of  any  religious  denomination  whatever, 
as  from  scruples  of  conscience  may  he  averse  to  bearing  arms,  shall 
be  excused  tlierefrom,  upon  such  conditions  as  shall  be  prescribed  by 
law. 

Section  2.  Militia  officers  shall  be  chosen  or  appointed  as  follows  : 
captains,  subalterns  and  non-commissioned  officers  shall  be  chosen 
by  the  written  votes  of  the  members  of  their  respective  companies. 
Field  officers  of  regiments  and  separate  battalions,  by  the  written 
votes  of  the  commissioned  officers  of  the  respective  regiments  and 
separate  battalions;  brigadier-generals  and  brigade  inspectors  by 
the  field  officers  of  their  respective  brigades  ;  maji)r-geuerals  and 
commanding  officers  of  regiments  or  separate  battalions,  shall  ap- 
point the  staff  officers  to  their  respective  divisions,  brigades,  regi- 
ments or  separate  battalions. 

Section  3.  The  Governor  shall  nominate,  and  with  the  consent  of 
the  Senate,  appoint  all  miijor-generals  and  the  commissary-general. 
1  he  adjutant-general  and  other  chiefs  of  staff  departments,  and 
the  aid-de-camp  of  the  commander-in-chief  shall  be  appointed  by 
the  Governor,  and  their  commissions  shall  expire  with  the  time  for 
which  the  Governor  shall  have  been  elected.  The  commissary- 
general  shall  hold  his  office  for  two  years.  He  shall  give  security 
for  the  faithful  execution  of  the  duties  of  his  office  in  such  manner 
and  atnount  as  shall  be  prescribed  by  law. 

Section  4.  The  Legislature  shall  by  law  direct  the  time  and  man- 
ner of  electing  militia  officers,  and  of  certifying  their  elections  to 
the  Governor. 

Section  5.  The  commissioned  officers  of  the  militia  shall  be  com- 
missioned by  the  Governor  ;  and  no  commissioned  officer  shall  be 
removed  from  office,  unless  by  the  Senate  on  the  recommendation 
of  the  Governor,  stating  the  grounds  on  which  such  removal  is  re- 
commended, or  by  the  decision  of  a  court  martial,  pursuant  to  law. 
The  present  officers  of  the  militia  shall  hold  their  commissions  sub- 
ject to  removal,  as  before  provided. 

Section  G.  In  case  the  mode  of  election  and  appointment  of  mili- 
tia officers  hereby  directed  shall  not  be  found  conducive  to  the  im- 
provement of  the  militia,  the  Legislature  may  abolish  the  same, 
and  provide  by  law  for  their  appointment  aiid  removal,  if  two- 
thirds  of  the  members  present  in  each  house  shall  concur  therein. 


Militia  to  be 
armed  and  disci- 
plined. 


Militia  officers, 
liow  cliosen  and 
appointed.    Art. 
4,  sec.  1. 


Miliiia  officers 

a|ipointed  by 

Governor  and 


•nor  and 
._,^..„,c.     Art.  4, 
sec.  2,  sec  6. 


Sunal 


Commissary  Ge- 
neral to  give  se- 
curity. 


Time  of  electing 
militia  officers. 
Art.  4,  sec.  3. 

Militia  officer.^, 
how  commission- 
ed.   Art.  4,  sec.  4. 


Election  of  mili- 
tia officers  may 
be  abolished. 
Art.  4,  sec.  5. 


ARTICLE  XII. 


Section  1.  Members  of  the  Legislature,  and   all   officers,  execu-  Oath  of  cffl:e 


live  and  judicial,  except  such  inferior  officers  as  may  be  by  law  ex- 
empted, shall,  before  they  enter  on  the  duties  of  their  respective 
offices,  take  and  subscribe  the  following  oath  or  affirmation  : 

"  I  do  solemnly  swear  (or  affirm,  as  the  case  may  be)  that  I  will 
support  the  Constitution  of  the  United  States,  and  the  Constitution 
of  the  Stale  of  New  York  ;  and  that  I  will  faithfully  discharge  the 
duties  of  the  office  of  according  to  the  best  of  my  ability." 

And  no  other  oath,  declaration  or  test  shall  be  required  as  a  qual- 
ification for  any  office  or  public  trust. 


prescribed. 
Art.  6,  seCj  1. 


xxxu 


Amendments  to 
Constitution, 
how  made 
Art.  8,  sec.  1. 


Future  conven- 
tion, how  called. 


AKT.  13.— AMENDMENTS.    ART.  14.— MISCELLANEOUS- 
ARTICLE  Xin. 

Section  1.  Any  amendment  or  amendments  to  this  Constitution 
may  be  proposed  in  llie  frenate  and  Assembly  ;  and  il  tiie  same 
shall  be  agreed  to  by  a  majority  of  the  members  elected  to  each  of 
the  two  houses,  such  proposed  amendment  or  amendments  shall  be 
entered  on  their  journal.s  with  the  yeas  and  nays  taken  thereon,  and 
referred  to  the  Legislature  to  be  chosen  "  at  ihe  next  general  elec- 
tion of  Senators,"  and  shall  be  published  for  three  months  jirevious 
to  the  time  of  making  such  cltoice  ;  and  if,  in  the  Legislature  so 
next  chosen  as  aloresaid,  such  proposed  amendment  or  amendments 
shall  be  agreed  to  by  a  majority  of  all  ihe  members  elected  to  each 
Jiouse,  then  it  shall  be  the  duty  of  the  Legislature  to  submit  such 
proposed  amendment  or  amendments  to  the  people,  in  such  manner 
and  at  such  time  as  the  Legislature  shall  prescribe  ;  and  if  the  peo- 
ple shall  approve  and  ratify  such  amendment  or  amendments,  by  a 
majority  of  the  electors  qualified  to  vute  lor  members  of  the  Legisla- 
ture, voting  thereon,  sucii  amendment  or  amendments  sljall  become 
part  of  the  Constitution. 

Section  2.  At  the  general  election  to  be  held  in  the  year  eighteen 
hundred  and  sixty-six,  and  in  each  twentieth  year  thereafter,  and 
also  at  such  lime  as  the  Legislature  may  by  law  provide,  the  ques- 
tion, "  Shall  there  be  a  Convention  to  revise  the  Constitution  and 
amend  the  same  V  shall  be  decided  by  the  electors  qualified  to  vole 
for  members  of  the  Legislature  ;  and  in  case  a  majority  of  the  elec- 
tors so  qualilied,  voting  at  such  election,  shall  decide  in  favor  of  a 
Convention  for  such  purpose,  the  Legislature,  at  its  next  session, 
shall  provide  by  law  for  the  election  of  delegates  to  such  Conven- 
tion. 


First  election  of 
members  of  the 
Legislature. 


First  election  of 
(iovemor  ami 
Lieut.  Governor. 


Of  State  otTicer.". 


Of  jud?(!M  of  llin 
Court  of  A|>|>i-ala 
ami  jiiHiiccM  of 
the  Siil>reliiu 
Court. 


JuriHillrijon  of 

pCllllllIK  HIlllH, 

V(!»l«il  in  till!  Si  I 
proinu  Court. 


ARTICLE   XIV. 

Section  1.  The  first  election  of  Senators  and  Members  of  Assem- 
bly, pursuant  to  the  provisions  of  this  Constilution,  shall  be  held  on 
the  I'uesday  succeeding  the  first  Monday  of  November,  one  thou- 
sand eight  hundred  and  forty-seven. 

The  Senators  and  Members  of  Assembly  who  maybe  in  office  on 
the  first  day  of  January,  one  thousand  eight  hundred  and  forty- 
seven,  shall  hold  their  uificts  until  and  including  the  thirty-first  day 
of  December  Jollowmg,  and  no  longer. 

Section  2.  '1  he  iirsi  election  of  Cuvcrnor  and  Lieutenant-Gover- 
nor, under  this  Constitution,  shall  be  held  on  the  Tuesday  succeed- 
ing the  first  jMonday  of  November,  one  tiiousand  eight  Inuidred  and 
forty-eight  ;  and  the  Covernor  and  Lieutenaut-Covernor  m  office 
when  this  Constitution  shall  take  effect,  shall  hold  their  respective 
ofiices  until  and  including  ti)e  thirty-first  day  of  December  of  that 
year. 

Section  3.  The  Secretary  of  State,  Comptroller,  Treasurer, 
Alloniey-GeiU'ral,  District  Attorneys,  Surveyor-General,  Canal 
Commissioners,  and  inspectors  of  tSlale  i)risons,  in  ollice  when  this 
Constitution  shall  take  eliect,  shall  hold  their  respective  offices  un- 
til and  including  the  thirty-first  day  of  December,  one  thousand 
eight  hundred  and  forty-seven,  and  no  longer. 

Section  J.  'I'lie  first  election  of  judges  and  clerk  of  the  court  of 
Q|)peal.s,  Justices  of  the  . 'supreme  C^ourt,  and  county  judges,  shall 
lake  place  at  such  time  between  the  lirsl  Tuesday  of  April  and  the 
Hecoiid  'i'uesday  of  June,  one  thoiisanrl  eight  hundred  and  fortj'- 
Keren,  ua  may  be  prescribed  by  law.  The  said  courts  shall  respec- 
tively enter  upon  their  duties  on  the  first  Monday  of  July  next 
iheri  after  ;  but  the  term  of  ollice  of  said  judges,  clerk  and  Justices 
aH  declared  by  this  ('onslitution,  shall  be  deemed  to  commence  on 
the  firMt  day  of  .laiiuary,  one  thousand  eight  hundred  and  forty- 
eight. 

.•^ei  tioii  .')  On  Ihe  first  Monday  of  July,  one  tiiousand  eight  liun- 
dred  and  forty-seven,  jurisdiction   of  all   suits  and  proceedings  then 


ART.  14.— MISCELLANEOUS.  XXXiii 

pending  in  the  present  Supreme  Court  and  Court  of  Chancery,  and 
all  suits  and  proceedings  origfinally  commenced  and  then  pending  in 
any  Court  of  Common  Pleas, (except  in  the  city  and  county  of  New 
York,)  shall  become  vested  in  the  Supreme  Court  hereby  estab- 
lished. Proceedings  pending  in  courts  of  Common  Pleas,  and  in 
suits  originally  commenced  in  Justices'  courts,  shall  be  transferred 
to  the  county  courts  provided  for  in  this  Constitution,  in  such  man- 
ner and  form,  and  under  such  regulation,  as  shall  be  provided  by 
law.  The  courts  of  Oyer  and  lerminer  hereby  established  shall, 
in  their  respective  counties,  have  jurisdiction,  on  and  after  the  day 
last  mentioned,  of  all  indictments  and  proceedings  then  pending  in 
the  present  courts  of  Oyer  and  Terminer;  and  also  of  all  indict- 
ments and  proceedings  then  pending  in  the  present  courts  of  gene- 
ral sessions  of  the  peace,  except  in  the  city  of  New  York,  and  ex- 
cept in  cases  of  which  the  courts  of  sessions  hereby  established 
may  lawfuliy  take  cognizance  ;  and  of  such  indictments  and  pro- 
ceedings the  courts  of  sessions  hereby  established  shall  have  juris- 
diction on  and  after  the  day  last  mentioned. 

Section  6.  The  chancellor  and   the  present  Supreme  Court  shall  Chancellor  and 
respectively  have  power  to  hear  and  determine  any  of  such  suits  and  couruo^de^ide** 
proceedings  ready  on  the  first  Monday  of  July,  one  thousand  eight  suits  ready  for 
hundred  and  forty-seven,  for  hearing  or  decision,  and  shall,  for  their  hearing, 
services  therein,  be  entitled  to   their  present  rates  of  compensation 
until   the  first  day  of  July,  one   thousand  eight  hundred  and  forty- 
eight,  or  until  all  such  suits   and  proceedings  shall  be  sooner  heard 
and  determined.     Masters   in   chancery  may  continue   to   exercise  Masters  and  ex- 
the  functions  of  their  office  in  the  Court  of  Chancery  so  long  as  the  aminers. 
Chancellor  shall  continue  to  exercise  the  functions  of  his  office  un- 
der the  provisions  of  this  Constitution. 

And  the  Supreme  Court  hereby  established  shall  also  have  power  Supreme  Court 

to  hear  and  determine  such  of  said  suits  and  proceedings  as  may  be  ""^^  *'^°  decide 

.,      ,  ,      ,  i^  &  .;  cau'es  as  pre- 

prescribed  by  law.  scribed  by  law. 

Section  7.  In  case  any  vacancy  shall  occur  in  the  office  of  chan-   vacancy  in 
cellor  or  Justice  of  the  present   Supreme   Court,  previously  to  the  office  of  Chan- 
first  day  of  July,  one  thousand  eight  hundred  and  forty-eight,  the  <^s"°'^- 
Governor  may  nominate,  and  by  and  with   the   advice  and  consent 
of  the  Senate,  appoint  a  proper  person  to  fill  such  vacancy.     Any 
judge   of  the   court  of  appeals  or  Justice  of  the  iSupreme   Court, 
elected  under  this  Ci>nstilution,  may  receive  and  hold  such  appoint- 
ment. 

Section  8.  The  offices  of  chancellor,  Justice  of  the  existing  Su-  Office  of  Chan- 
preme  Court,  circuit  judge,  vice-chancellor,  assistant  vice-chancel-  [he'exildn^'^S^u 
lor,  judge  of  the  existing  county  courts   of  each   county.  Supreme  premeCoun,&c. 
Court  commissioner,  master  in  chancery,  examiner  in  chancery,  and  abolished. 
surrogate,  (except  as  herein  otherwise  provided,)  are  abolished  from 
and  after  the   first   Monday  of  July,  one   thousand  eight   hundred 
and  forty-seven  (1847.) 

Section  9.  The  Chancellor,  the  Justices  of  the  present  Supreme  Chancellor,  &c., 
Court,,  and  the  circuit  judges,  are  hereby  declared  to  be  severally  at'lrstVlection* 
eligible  to  any  office  at  the  first  election  under  this  Constitution. 

Section  10.  Sheriffs,  cleiks  of  counties,  (including  the  register  and 
clerk  of  the  city  and  county  of  New  York,)  and  Justices  of  the  Peace 
and  coroners,  in  office  when  this  Constitution  shall  take  effect,  shall 
hold  their  respective  offices  until  the  expiration  of  the  term  for 
which  they  were  respectively  elected. 

Section  11.  Judicial  officers  in  office  when  this  Constitution  shall  Judicial  ofBcera 
take  effect,  may  continue   to  receive  such  fees  and   perquisites  of  'o  receive  fees 

till  Jiilv    1^47 

office  as  are  now  authorized  by  law,  until  the  first  day  of  July,  one  ^' 

thousand  eight  hundred  and  forty-seven,  notwithstanding  the  provi- 
sions of  the  twentieth  section  of  the  sixth  article  of  this  Constitu- 
tion. 

Section  12.  All  local  courts  established  in  any  city  or  village,  in-  Local  courts  in 
eluding  the  Superior  Court,  Common  Pleas,  sessions  and  surrogate's  '^'"^fo'temain*' 
courts  of  the   city  and   county  of  New  York,  shall  remain,   until  unuj,  &«. 
otherwise  directed  by  the  Legislature,  with  their  present  powers  and 

C 


XXXlV 


ART.  14.— MISCELLANEOUS. 


When  constitu- 
tion takes  effect. 


jurisdictions ;  and  the  judges  of  such  courts  and  any  clerks  thereof 
in  office  on  the  first  day  of  January,  one  thousand  eight  hundred 
and  forty-seven,  shall  continue  in  office  until  the  expiration  of  their 
terms  of  office,  or  until  the  Legislature  shall  otherwise  direct. 

Section  13.  This  Constitution  shall  be  in  force  from  and  including 
the  first  day  of  January,  one  thousand  eight  hundred  and  forty- 
seven,  except  as  is  herein  otherwise  provided. 

Done  in  Convention,  at  the  Capitol,  in   the  city  of  Albany,  the 
ninth  day  of  October,  in  the  year  one   thousand  eight  hundred 
and  forty-six,  and  of  the  Independence  of  the  United  States  of 
America  the  seventy-first. 
In  witness  thereof,  we  have  hereunto  subscribed  our  names. 
JOHN  TRACY,  President, 
And  Delegate  from  the  county  of  Chenango. 
James  F.  Starbuck,  \ 
H.  W.  Strong,  >  Secretaries. 

Fr.  Seger,  j 

State  of  New  York,  ? 
Secretary's  Office.      ^ 
I  have  compared  the  preceding  with  the  original  engrossed  Con- 
stitution, deposited  in  this  office  on  the  ninth  day  of  October,  1846, 
and  do  certify  that  the  same  is  a  correct  transcript  therefrom,  and 
of  the  whole  of  said  original. 

Given  under  my  hand  and  seal  of  office,  at  the  city  of 
[l.  s.]     Albany,  the  tenth  day  of  October,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  forty-six. 

N.  S.  BENTON,  Secretary  of  State. 


A 

TREATISE 

ON   THE 

CIVIL  JURISDICTION 

OF 

JUSTICES  OF  THE  PEACE,  &c. 


TREATISE. 


PART   I. 

OF  THE  CIVIL  JURISDICTION  OF  JUSTICES  OF  THE  PEACE. 
UNDER  THE  STATUTES  AND  CODE  OF  PROCEDURE. 


CHAPTER    I. 

OF    THE    JURISDICTION    OF    JUSTICES    OF    THE    PEACE. 

I  shall  treat  the  subjects  of  this  chapter  under  the  following 
heads : 

1.  Of  Justices'  Courts. 

2.  What  Relates  to  Justices  Personally. 

3.  Of  the  Parties  luho  may  Sue  or  he  Sued. 

4.  The  Atnomit  in  Controversy. 

1.  Of  Justices'  Courts. 

Courts  of  Justices  of  the  Peace  are  Courts  not  of  record  : 
and  Courts  of  limited  jurisdiction. 

The  parties,  as  a  general  rule,  make  their  complaint  and 
answer  orally.  A  minute  of  the  pleadings  is  entered  by  the 
Justice  in  his  docket.  What  transpires  subsequently  in  Court, 
in  the  progress  of  a  cause,  to  its  final  termination,  is  also  entered 
by  the  Justice  in  his  docket.  This,  properly  speaking,  is  the 
only  record  of  the  proceedings. 

If  the  pleadings  are  written,  they  are  filed  with  the  Justice. 
The  filing  of  a  paper  is  the  noting  on  the  back  of  it  the  time 
when  it  is  filed,  thus,  "  Filed  January  1st,  1849."  (Edw.  Tr., 
3d  ed.,  155.) 

Justices'  Courts  can  take  nothing  by  implication  ;  but  are 
strictly  confined  to  the  authority  given  them  by  statute.  (1  J. 
Cas.  20.      1  Cai.  191.)     The  rule  is  well   settled,  that  if  a 

1 


2  OF  THE  JURISDICTION  OF 

Justices'  Court  acts  in  a  matter  of  which  the  statute  has  given 
it  no  jurisdiction,  its  proceedings  are  absohitely  void.  (17  J. 
R.  145.  3  Cow.  309.  11  J.  R.  175.)  Nor  can  the  parties  con- 
fer jurisdiction  by  their  own  acts.  Thus,  if  a  Justices'  Court 
try  an  action  for  slander,  hbel  or  assault  and  battery,  the  pro- 
ceedings are  void,  though  the  parties  appear  and  consent  to  go 
to  trial.  (3  Cow.  206.  1  Wend.  210.  8  J.  R.  409.  14  J.  R. 
432.) 

2.    What  Relates  to  the  Justice  Personally. 

Persons  were  regularly  appointed  as  conservators  to  keep  the 
peace,  at  a  very  early  date.  In  the  reign  of  Edward  III.,  it  was 
ordained  that  two  or  three  persons  of  the  best  reputation  in 
each  county,  should  be  assigned  to  be  keepers  of  the  peace, 
once  in  three  years.     (1  Black.  Com.  352.) 

In  this  country,  the  constitution  of  New  York,  of  1777,  pro- 
vided that  new  commissions  should  be  issued  to  Justices  of  the 
Peace,  once  in  three  years.     (Const.,  art.  28.) 

Laws  of  similar  import  were  passed  by  the  legislature  of  this 
state  in  1801.  In  1813,  it  was  enacted  that. in  every  county  of 
this  state,  fit  and  discreet  men  should,  from  time  to  time,  be  ap- 
pointed and  commissioned  Justices  to  keep  the  peace  in  said 
counties.     (Laws  of  1813,  Vol.  2,  506.) 

Until  1818,  Justices  of  the  Peace  in  this  state  were  county 
officers.  In  that  year,  the  legislature,  upon  the  recommendation 
of  the  Governor,  passed  a  law  limiting  the  number  of  Justices 
to  four  in  each  town  in  a  county.     (Laws  of  1818,  50.) 

A  Justice  of  the  Peace,  so  far  as  relates  to  his  place  of  busi- 
ness, is  a  town  officer.  (6  Cow.  642.)  He  must  live  in  the  town 
for  which  he  was  chosen  ;  and  cannot  try  a  civil  cause  in  any 
other  town.     (1  R.  S.  105.) 

There  is  no  law  limiting  a  Justice  to  act  in  his  own  town, 
except  in  the  trial  of  a  civil  cause.  His  territorial  jurisdiction 
is  still  co-exlcnsivc  with  the  county  in  which  he  is  elected. 
Process  may  be  issued  by  him  in  any  part  of  the  county,  and 
it  may  bo  served  in  any  part  of  the  county.  (1  Wend.  319, 
322.)  He  sbould  howc^vcr  take  care,  in  civil  cases,  to  make  his 
process  rcluniabic  in  the  town  in  which  lie  resides. 

A  Justice  can  issue  no  process  in  a  civil  suit,  which  will  be 
operative  out  of  his  county,  except  a  subpoena,  which  may  be 


JUSTICES  OF  THE  PEACE  3 

served  in  the  county  next  adjoining  that  in  which  the  cause  is 

to  be  tried.     (2  R.  S.  337.) 

The  office  of  a  Justice  will  not  be  vacated  in  consequence  of 
an  increase  or  diminution  of  his  territorial  jurisdiction,  by  the 
erection  of  a  new  town,  or  the  annexing  of  parts  of  one  town 
to  another.  Where  a  town  is  transferred  from  one  county  to 
another,  or  a  new  county  made  out  of  several  towns,  the  Jus- 
tices of  these  towns  continue  to  hold  their  offices  as  Justices  of 
the  town  or  towns  in  the  new  counties.     (1  R.  S.  113,  114.) 

There  are  at  present  four  Justices  of  the  Peace  in  each  town 
in  this  state ;  one  of  whom  is  annually  elected  at  the  annual 
town  meeting  held  in  each  town  ;  and  no  vacancies  can  be  filled 
at  any  other  time.  (IR.S.  113.  Id.  392.  9  Cow.  640.  2  Hill,  366.) 
Each  Justice  holds  his  office  four  years,  except  when  elected  to 
fill  a.  vacancy,  or  on  the  erection  of  a  new  town.     (1  R.  S.  113.) 

Justices  of  the  Peace  may  be  removed  by  the  Supreme  Court 
at  any  general  term  thereof,  for  causes  to  be  assigned  in  the 
order  of  removal.     (Session  Laws,  1847.     Judiciary  Act,  325.) 

If  a  Justice  become  a  tavern-keeper  in  fact,  after  his  election, 
he  is  disqualified  thereby  from  doing  any  official  act  in  a  civil 
suit,  except  that  he  may  issue  execution  upon  a  judgment  ac- 
tually rendered  by  him  before  he  became  so  disqualified.  (2  R. 
S.  325.)  The  words  in  the  statute  "in  fact,"  are  intended  to 
settle  the  question  which  might  in  some  cases  arise  respecting  a 
license  ;  for  if  he  actually  commences  keeping  a  tavern  after  his 
election,  without  a  license,  he  is  within  the  restrictions  of  the 
statute.     (13  J.  R.  218.) 

A  judgment  would  be  reversed,  if  it  should  appear  that  the 
Justice  has  a  direct  interest  in  the  amount  recovered.  But  a 
remote  and  contingent  interest  would  not  disqualify  him.  (11 
J.  R.  76.) 

No  action  to  recover  a  penalty  given  to  a  town,  can  be 
brought  before  a  Justice  residing  in  the  town,  for  the  benefit  of 
which  the  same  is  prosecuted  :  it  must  be  brought  before  some 
Justice  residing  in  another  town  of  the  same  county.  (1  R.  S.  459.) 

The  foregoing  rule  only  applies  to  penalties  given  to  a  town 
directly  in  its  corporate  capacity ;  and  not  to  cases  where  the 
penalty  is  directed  to  be  prosecuted  by  town  officers,  and  appro- 
priated to  specific  purposes  ;  such  as  penalties  to  be  prosecuted 
for  by  overseers  of  the  poor,  for  the  use  of  the  poor ;  by  com- 


4  OF  THE  JURISDICTION  OF 

missioners  of  highways  for  the  repair  of  roads  and   bridges, 
<fcc.     (6  Hill,  58.) 

Relationship  to  one  of  the  parties  to  a  snit  before  him,  dis- 
qualifies a  Justice  from  trying  the  cause  ;  and  if  he  should 
persist  in  trying  the  cause  after  the  fact  of  too  near  relationship 
appeared,  the  judgment  he  might  render  would  be  reversed.  (17 
J.  R.  133.) 

Relationship  to  one  of  the  parties,  to  disqualify  a  Justice, 
must  be  so  near  as  to  amount  of  itself  to  a  strong  presumption 
of  partiality  and  fraud.  It  is  no  objection  that  the  Justice  is 
half-uncle  to  the  plaintiff's  wife.  In  a  case  where  the  Justice 
was  father-in-law  of  the  plaintiff,  the  Supreme  Court  held  his 
authority  as  questionable.  (13  J.  R.  191.)  In  another  case,  the 
(^ourt  say,  that  the  Justice  who  admitted  that  he  was  son-in-law 
of  the  plaintiff,  and  insisted  on  retaining  jurisdiction,  was  of  itself, 
evidence  that  the  trial  was  not  fair  and  impartial.  (19  J.  R.  172.) 
No  Judge  of  any  Court  can  sit  as  such  in  any  cause  to  which 
he  is  a  party,  or  in  which  he  is  interested,  or  in  which  he  would 
be  excluded  from  being  a  witness,  by  reason  of  consanguinity 
or  affinity  to  either  of  the  parties.     (2  R.  S.  373.) 

Where  a  Justice  had  given  an  opinion  in  the  cause,  it  was 
held  to  be  no  ground  of  challenge.  Otherwise,  if  a  Justice's 
opinion  had  been  sought  and  obtained  in  relation  to  the  matter 
in  controversy  :  also,  where  the  party  had  made  a  statement  of 
facts  and  taken  from  the  Justice  any  direction  whatever  con- 
cerning them,  though  it  be  merely  as  to  a  course  of  proceeding 
to  obtain  redress.     (17  J.  R.  137.) 

The  want  of  jurisdiction  in  the  Justice  may  be  shown  at  any 
stage  of  the  proceedings. 

When  a  Justice  has  no  jurisdiction  and  undertakes  to  act,  his 
acts  are  void  equally  as  though  he  were  not  a  Justice  ;  but  if 
he  has  jurisdiction  and  errs  in  exercising  it,  then  his  acts  are 
not  void  but  voidable,  and  can  be  taken  advantage  of  only  by 
appeal,  or  otherwise.  (17  J.  R.  14.5.)  In  the  former  case,  he  is 
j)orsonally  liable  in  an  action  for  any  injury  arising  from  his 
acts  ;  in  the  latter  not.     (3  Cow.  206.) 

A  Justice  may  l)c  liable  as  a  trespasser  when  there  is  not  a 
total  want  of  jurisdiction,  but  some  proceeding  or  proof  is  want- 
ing which  is  necessary  in  order  to  give  him  authority  to  act  in 
the  particular  case.  As  if  he  issue  an  attachment  witliout  any 
proof  of  absconding   or  concealment,  whicli  is  executed,  not 


JUSTICES  OF  THE  PEACE.  5 

only  the  Justice,  but  also  the  plaintiff,  would  be  liable  as  tres- 
passers. (11  J.  R.  175.  Edw.  Tr.,  3d  ed.,  18.)  The  constable 
who  served  the  attachment,  being  only  a  ministerial  officer, 
would  be  protected.     (3  Cow.  206.) 

3.   Of  the  Parties  who  may  Sue  or  be  Sued. 

Every  action  must  be  prosecuted  in  the  name  of  the  real 
party  in  interest.  (Code,  sec.  111.)  A  mere  agent,  therefore, 
cannot  maintain  an  action  in  his  own  name,  though  the  engage- 
ment be  made  to  him  as  the  agent  of  another  ;  unless  he  have  a 
beneficial  interest  in  the  contract ;  in  which  case,  either  he  or 
his  principal  may  sue. 

To  the  foregoing  rule  there  is  the  following  exception  : 

An  executor  or  administrator,  a  trustee  of  an  express  trust,  or 
a  -person  expressly  authorized  by  statute^  may  sue,  without 
joining  with  him  the  persons  for  whose  benefit  the  suit  is  prose- 
cuted.    (Code,  sec.  113.) 

All  town  and  county  officers  are  expressly  authorized  by 
statute  to  sue  in  Justices'  Courts,  in  their  official  character. 
(2  R.  S.  325,  sec,  6.)  Suits  may  be  brought  by  the  Super- 
visors of  the  county — the  Loan  Officers  or  Commissioners  of 
Loans  of  a  county — the  county  Superintendents  of  the  Poor 
— Commissioners  of  Common  School? — Commissioners  of  High- 
ways— Trustees  of  School  Districts — Town  Superintendents  of 
Common  Schools — upon  any  contracts  made  with  them  or  their 
predecessors,  in  their  official  character ;  to  enforce  any  liability, 
or  any  duty  enjoined  by  law  to  such  officers,  or  the  body  they 
represent ;  and  to  recover  damages  for  any  injuries  done  to  the 
property  or  right  of  such  officers,  or  the  bodies  represented  by 
them.     (2  R.  S.  569.) 

The  officers  above  named  are  authorized  to  bring  such 
actions  in  the  name  of  their  respective  offices,  notwithstanding 
the  contract  or  obligation  on  which  the  same  is  founded,  may 
have  been  made  with  or  to  any  of  their  predecessors  in  office,  in 
their  individual  name,  or  otherwise.  But  in  all  cases  the  action 
should  be  brought  in  the  name  of  the  officer  with  the  addition 
of  his  name  of  office,  and  not  merely  in  the  name  of  the 
office.     (2  R.  S.  569,  sec.  107.     4  Hill,  136.) 

All  persons  having  an  interest  in  the  subject  of  the  action, 
and  in  obtaining  the  relief  demanded,  may  be  joined  as  plain- 
tiffs.    (Code,  sec.  117.) 


6  OF  THE  JURISDICTION  OF 

Any  person  may  be  made  a  party  defendant  who  has  or 
claims  an  interest  in  the  controversy  adverse  to  the  plaintiff, 
or  who  is  a  necessary  party  to  a  complete  determination  or 
settlement  of  the  questions  involved  therein.  (Code,  sec.  118.) 
A  plaintiff,  therefore,  may  proceed  in  the  same  suit  against  a 
surviving  partner  and  the  representative  of  a  deceased  partner. 

Of  the  parties  to  the  action,  those  who  are  united  in  interest 
must  be  joined  as  plaintiffs  or  defendants  ;  but  if  the  consent  of 
any  one,  who  should  have  been  joined  as  plaintiff,  cannot  be 
obtained,  he  may  be  made  a  defendant,  the  reason  thereof  being 
stated  in  the  complaint ;  and  when  the  question  is  one  of  a 
common  or  general  interest  of  many  persons,  or  when  the  parties 
are  very  numerous,  and  it  may  be  impracticable  to  bring  them 
all  before  the  court,  one  or  more  may  sue  or  defend  for  the 
benefit  of  the  whole.     (Code,  sec.  109.) 

Persons  severally  liable  upon  the  same  obligation  or  instru- 
ment, including  the  parties  to  bills  of  exchange  and  promissory 
notes,  may  all  or  any  of  them  be  included  in  the  same  action, 
at  the  option  of  the  plaintiff.     (Code,  sec.  120.) 

When  a  married  woman  is  a  party,  her  husband  must  be 
joined  with  her  ;  except  that, 

1.  When  the  action  concerns  her  separate  property,  she  may 
sue  alone. 

2.  W^hen  the  action  is  between  herself  and  husband,  she  may 
sue  or  be  sued  alone.     (Code,  sec.  114.) 

Actions  may  be  brought  in  Justices'  Courts  bi/  executors  and 
administrators,  but  not  against  them.     (Code,  sec.  54.) 

Although  suits  against  executors  and  administrators,  as  such, 
are  excluded  from  the  jurisdiction  of  a  Justice,  yet  if  suits  be 
brought  by  them  before  a  Justice,  the  defendant  may  plead  a 
set-off;  and  if  he  prevails,  may  have  judgment  against  them  in 
their  representative  character,  which  will  be  evidence  of  a  debt 
established,  to  be  paid  in  the  course  of  administration.  (2  R. 
S.  333,  sec.  .57.) 

Actions  cognizable  before  a  Justice,  may  be  brought  against 
all  town  and  county  ofTicers.  (2  R.  S.  325,  sec.  6.)  The  actions 
may  be  brouglit  against  them  individually,  specifying  in  the 
process,  pleadings  and  ])rocoedings,  their  name  of  office  ;  and 
such  actions  may  be  commenced  in  the  same  manner  as  against 
individuals.     (2  R.  S.  SHO.) 

Actions  may  now  be  brought  in  Justices'  Courts  against,  as 


JUSTICES  OF  THE  PEACE.  7 

well  as  by  corporations.  (Const.,  art.  8,  sec.  3.)  Process  against 
corporations  may  be  issued  as  in  other  cases  ;  and  may  be  served 
on  the  president  or  other  head  of  the  corporation,  secretary, 
cashier,  or  managing  agent  thereof. 

A  county  and  town  are  corporations.  Actions  against  a 
county  must  be  brought  against  its  board  of  supervisors  ;  pro- 
cess being  served  upon  the  chairman  or  clerk  of  the  board. 
Actions  against  a  town  must  be  brought  against  such  town  by 
its  name.  (2  R.  S.  569,  sec.  109.)  Where,  however,  county  and 
town  officers  are  authorized  by  law  to  sue  by  their  name  of 
office,  suits  may  be  brought  by  and  against  such  officers.  (1  R. 
S.  376.) 

A  Justice  has  jurisdiction  of  every  person  found  in  the  county 
whether  a  resident  or  not.  Every  action,  however,  must  be 
brought  before  some  Justice  of  the  town  wherein  either 

1.  The  plaintiffs,  or  any  one  of  them  reside  ;  or 

2.  Where  the  defendants,  or  any  one  of  them  reside ;  or 

3.  Before  some  Justice  of  another  town,  in  the  same  county, 
next  adjoining  the  residence  of  the  plaintift'or  defendant.  (2  R. 
S.  325,  sec.  9.) 

The  preceding  rule  has  the  following  exceptions  : 

1.  If  the  defendant  has  absconded  from  his  residence,  the 
action  may  be  brought  before  a  Justice  of  the  town  in  which 
such  defendant,  or  Ms  jyroperti/,  may  be. 

2.  If  the  plaintiffs  be  all  non-residents  of  the  county,  or  the 
defendant  be  a  non-resident  of  the  county,  then  such  action  may 
be  brought  before  any  Justice  of  the  town  in  which  such  plain- 
tiffs or  defendants  may  be.     (2  R.  S.  326,  sec.  10.) 

4.   The  Amount  in  Controversy. 

Suits  may  be  brought  before  a  Justice  of  the  Peace,  when 
the  debt  or  balance  due,  or  the  damages  claimed,  do  not  exceed 
one  hundred  dollars.  This  includes  actions  commenced  by 
attachment  of  property.     (Code,  sec.  53.) 

An  action  may  be  maintained  before  a  Justice  upon  a  bond, 
conditioned  for  the  payment  of  money,  not  exceeding  one 
hundred  dollars,  though  the  penalty  exceed  that  sum  ;  the  judg- 
ment to  be  given  for  the  sum  actually  due.  Where  the  pay- 
ments are  to  be  made  by  instalments,  an  action  may  be  brought 
for  each  instalment,  as  it  shall  become  due.    (Id.  sec.  53,  art.  5.) 


8  OF  THE  JURISDICTION  OF,  &c. 

Justices'  Courts  have  jurisdiction  on  all  surety  bonds  taken 
by  them,  whatever  may  be  the  amount  claimed.  (Id.  sec.  53, 
art.  6.) 

If  a  Justice,  excepting  in  the  last  case  mentioned,  issue  pro- 
cess, stating  a  cause  of  action  for  more  than  one  hundred 
dollars,  it  is  a  nullity,  and  the  defendant  need  pay  no  attention 
to  it.     (6  Hill  R.  631.) 

If  the  plaintiff  state  his  demand  at  more  than  one  hundred 
dollars,  but  claim  damages  only  to  one  hundred,  the  Justice  has 
jurisdiction.  So  the  plaintiff  may  sue  on  a  demand  exceeding 
one  hundred  dollars,  and  reduce  it  to  the  Justices'  jurisdiction 
by  voluntary  credit  or  deduction.  (1  John.  Cas.  25,  113.  12 
J.  R.  425.  24  Wend.  Rep.  113.)  But  it  is  not  to  be  under- 
stood that  the  plaintiff  is  obliged,  when  he  commences  his  suit, 
to  endorse  or  otherwise  reduce  his  demand  to  one  hundred 
dollars ;  for  this  might  give  the  defendant,  if  he  has  a  set-off. 
an  undue  advantage.  The  parties  may  present  and  prove  their 
demands  as  they  are,  and  if  a  balance  is  found,  exceeding  the 
Justices'  jurisdiction,  the  excess  may  be  remitted,  and  judgment 
taken  for  the  residue.     (Justices'  Manual,  3d  ed.,  13.) 

One  indivisible  contract,  as  a  promissory  note  for  one  hundred 
and  twenty-five  dollars,  or  the  sale  at  one  time  of  several  barrels 
of  pot-ashes,  cannot  be  made  the  foundation  of  several  suits,  so 
as  to  recover  part  in  one  suit,  and  part  in  another.  Only  one 
suit  can  be  brought  on  an  entire  contract.  (Justices'  Manual, 
3d  ed.,  13.  16  J.  R.  121.  15  id.  229.)  This  rule,  however,  is  only 
applicable  to  adversary  suits.  (7  Cow.  310.)  The  parties  may, 
by  mutual  agreement,  divide  a  large  demand  into  any  number 
of  smaller  ones  which  may  suit  their  convenience,  and  the  de- 
fendant confess  separate  judgments  therefor. 

A  Justice  has  no  jurisdiction  where  the  sum  total  of  the 
accounts  of  both  parties,  proved  to  the  satisfaction  of  the  Justice, 
shall  exceed  four  hundred  dollars.  But  where  accounts  have 
been  settled,  the  balance  is  the  only  subsisting  account ;  and 
unless  this  balance  and  the  suliscqucnt  accounts,  exceed  four 
hundred  dollars,  the  Justice  has  jurisdiction.  (Code,  sec.  54. 
2  Cow.  431.) 

'"I'iic  Justice  can  now,  as  formerly,  take  and  enter  judgment 
on  confession  of  a  defendant,  where  the  amount  confessed  does 
not  exceed  two  hundred  and  fifty  dollars.     (Code,  sec.  53.) 


CHAPTER    II. 

THE    FORM    AND    GENERAL    PRINCIPLES    OF    SUITS. 

This  chapter  comprises  the  following  subjects  : 

1.  Abolishment  of  Forms  of  Action. 

2.  Actions  cognizable  by  Justices'  Courts. 

3.  Law  of  Contract. 

4.  Doctrine  of  Partnerships. 

5.  Warranty  on  Sale  of  Goods. 

6.  Definition  and  Nature  of  Bonds. 

7.  Law  in  Relation  to  Promissory  Notes. 

8.  Matters  of  Account. 

9.  Law  in  Relation  to  Interest  on  Money  and  Accounts. 

10.  Of  Direct  Injuries ;  to  Personal  Property ;  to  Real  Pro- 
perty. 

11.  Of  Indirect  Injuries  ;  to  the  Person  ;  to  Personal  Pro- 
perty ;  to  Real  Property. 

12.  Law  in  Relation  to  Statute  Penalties. 

13.  Actions  not  cognizable  by  Justices'  Courts. 

14.  Of  Liabilities  created  by  Statute  other  than  a  Penalty 
or  Forfeiture. 

The  forms  of  actions  hitherto  existing  in  this  state,  are  abol- 
ished ;  and  there  is  now,  for  the  enforcement  and  protection  of 
private  rights,  and  the  redress  of  private  wrongs,  but  one  form 
of  action,  which  is  denominated  a  civil  action.     (Code,  sec.  69.) 

The  nature  of  the  injury  complained  of,  and  the  remedy 
sought,  must  now  be  derived  from  the  plain,  ordinary  import  of 
the  language  used  in  the  process  and  pleadings.  If  the  action 
be  brought  on  a  contract  of  any  kind,  it  may  be  called  an  action 
on  a  contract ;  if  for  taking,  detaining,  or  injuring  personal  pro- 
perty, an  action  for  taking,  (detaining,)  (or  injuring)  personal 
property  ;  if  for  injury  to  real  property,  an  action  for  injury  to 
real  jjroperty.     (Id.  sec.  53.) 

The  actions  cognizable  by  a  Justices'  Court,  are  those  arising 

1.  On  Contract ;  including  actions  on  judgments  rendered 
hy  Courts  of  Justices  of  the  Peace,  or  of  Justices'  or 
other  inferior  Courts  in  cities. 


10  THE  FORM  AND  GENERAL 

2.  For  cm  injury  to  the  person  or  to  real  property,  or  for 

taking,  detai7iing;  or  injuring  personal  j)roperty. 

3.  Prom  the  incurring  of  some  penalty  given  by  statute. 

4.  Such  as  are  prosecuted  by  attachments. 

1.   On  Contracts. 

A  contract  is  an  agreement  of  two  or  more  persons,  upon  a 
sufficient  consideration,  to  do  or  not  to  do  a  particular  thing. 
(Blk.  Com.  442.     2  Kent  Com.  458.) 

Contracts  are  divided  into  agreements  by  specialty  and  agree- 
ments l)y  parol.  In  the  former  are  included  all  agreements  in 
writing,  under  seal ;  in  the  latter,  all  other  agreements,  whether 
written,  spoken,  or  merely  implied  by  law.  These  last  are  also 
called  simple  contracts. 

No  precise  or  formal  words  are  necessary  to  constitute  a  spe- 
cialty, or  agreement  under  seal,  more  than  any  other  agreement ; 
and  the  bare  putting  a  seal  to  a  promissory  note,  actually 
changes  the  nature  of  the  contract,  and  makes  that  a  specialty, 
which  otherwise  would  have  been  a  simple  contract  or  promise. 

The  chief  distinction  between  parol  contracts  and  contracts 
under  seal  is,  that  in  the  latter  from  the  solemnity  of  the  instru- 
ment, a  consideration  is  presumed,  until  the  contrary  is  shown. 
Formerly,  a  consideration  was  so  strongly  presumed  from  an 
instrument  under  seal,  that  the  want  of  a  consideration  could 
not  be  averred.  Now,  however,  the  want  of  consideration  in  a 
sealed  instrument  may  be  shown  equally  as  if  the  instrument 
were  not  scaled.  (2  R.  S.  504,  sec.  96.  Note  to  2  Kent  Com. 
450.) 

Parol  contracts  are  either  express  or  implied.  Express  con- 
tracts are  where  the  terms  of  the  agreement  are  openly  uttered 
and  avowed  at  the  time  of  the  making ;  as,  to  deliver  ten  loads 
of  timber,  or  to  pay  a  stated  price  for  certain  goods.  Implied 
contracts  are  such  as  reason  and  justice  dictate  ;  and  which, 
therefore,  the  law  presumes  that  every  man  undertakes  to  per- 
form. As,  if  I  employ  any  person  to  do  any  business  for  me, 
or  perform  any  woric  ;  the  law  implies  that  I  undertook  or  con- 
tracted to  pay  him  as  much  as  his  labor  deserves.  There  is 
one  species  of  iinplied  contracts  that  runs  through  and  is  an- 
nexed to  all  other  contracts,  to  wit :  that,  if  I  fail  hi  my  part  of 


PRINCIPLES  OF  SUITS.  H 

the  agreement,  I  shall  pay  the  party  such  damages  as  he  has 
sustained  by  such  my  neglect.     (2  Black.  Com.  443.) 

A  contract  may  also  be  either  executed — as,  if  A.  agree  to 
change  horses  with  B.,  and  they  do  it  immediately ;  in  which 
case  the  possession  and  the  right  are  transferred  together — or  it 
may  be  executory — as  if  they  agree  to  change  next  week  ;  here 
the  right  only  vests,  and  their  reciprocal  property  in  each  other's 
horse,  is  not  in  possession,  but  in  action.     (Id.) 

In  all  contracts,  either  express  or  implied,  there  must  be  some- 
thing given  in  exchange,  as  the  price  or  motive  of  the  contract, 
which  is  called  the  consideration.  A  consideration  of  some  sort 
or  another  is  so  absolutely  necessary  to  the  forming  of  a  contract, 
that  an  agreement  to  do  or  pay  any  thing  on  one  side,  without 
any  compensation  on  the  other,  is  totally  void  in  law ;  and  a 
man  camiot  be  compelled  to  perform  it.  (2  Black.  Com.  444, 
445.) 

The  rule  that  a  consideration  is  necessary  to  the  validity  of 
a  contract,  applies  to  all  contracts  and  agreements  not  under 
seal,  with  the  exception  of  bills  of  exchange  and  negotiable 
notes,  after  they  have  been  negotiated,  and  passed  into  the 
hands  of  an  innocent  endorsee.  The  immediate  parties  to  a 
bill  or  note,  equally  with  parties  to  other  contracts,  are  affected 
by  the  want  of  consideration ;  and  it  is  only  to  third  persons 
who  come  to  the  possession  (ff  paper  in  the  usual  course  of 
trade,  without  notice  of  the  original  defect,  that  the  want  of 
consideration  cannot  be  alleged.     (2  Kent,  464.) 

Any  trifling  consideration,  however,  is  sufficient  to  prevent 
the  agreement  from  being  void  ;  and  the  least  benefit  to  the 
party  promising,  or  some  trouble  or  prejudice  to  the  party  to 
whom  the  promise  is  made,  will  be  sufficient  to  sustain  a 
promise.     (2  Kent  465.     4  East,  455.) 

A  mutual  promise  amounts  to  a  sufficient  consideration,  pro- 
vided the  promises  be  concurrent  in  point  of  time,  and  in  that 
case,  the  one  promise  is  a  good  consideration  for  the  other. 
Where  several  persons  subscribe  to  raise  money  for  an  object  in 
which  all  feel  an  interest,  the  mutual  promises  of  the  subscri- 
bers form  a  valid  consideration  for  the  promise  of  each.  But 
the  agreement  of  a  single  person  to  make  a  donation  to  a  public 
institution,  without  any  undertaking  on  the  part  of  the  donor 
to  do  any  thing,  is  without  consideration  and  void.  (2  Denio, 
416,  417.)     If  an  agreement  be  optional  as  to  one  of  the  parties 


12  THE  FORM  AND  GENERAL 

and  obligatory  as  to  the  other,  it  does  not  destroy  its  mutuaUty, 
if  there  be  a  sufRcient  consideration  on  both  sides ;  as  if  one 
party  stipulates  that  he  will  deliver  salt  when  called  on,  and 
the  other  that  he  will  pay  for  the  salt  so  delivered,  this  is  mu- 
tuality, and  one  promise  is  in  consideration  of  the  other.  (3 
Tenn.  R.  19.)  If  two  concurrent  acts  are  stipulated,  as  delivery 
by  the  one  party  and  payment  by  the  other,  no  action  can  be 
maintained  by  either  Avithout  showing  a  performance,  or  what 
is  equivalent  to  a  performance  of  his  part  of  the  agreement. 
If  the  act  or  duty  to  be  performed  by  A.,  and  in  consideration 
of  which  B.  promises  to  pay,  be  such  that  it  cannot,  or  from  its 
nature  may  not  be  performed,  before  the  time  fixed  for  the  pay- 
ment by  B.,  then  A.  may  sue  for  the  money  without  averring 
performance.  But  if  the  time  be  fixed  for  the  payment  to  be 
made  in  consideration  of  the  act,  and  the  act  be  of  such  a  nature 
that  it  may  be  done  presently,  and  before  the  time  of  payment, 
then  the  act  becomes  a  precedent  condition  to  the  payment. 
(Note  to  2  Kent,  465.)  If,  therefore,  A.  agree  with  B.  to  split 
five  thousand  rails,  and  B,  agrees  that  on  the  said  loork  being 
completed,  he  will  pay  A.  fifty  dollars,  the  performance  of  the 
work  by  A.  is  a  condition  precedent,  which,  in  an  action  for  the 
fifty  dollars,  he  must  aver  and  prove  performed,  or  at  least,  an 
offer  to  perform,  and  that  he  was  prevented  from  performing  by 
some  act  or  neglect  of  B.  But  if,  on  the  other  hand,  B.  had 
agreed  to  pay  A.  the  fifty  dollars  on  the  15th  of  March,  and  A. 
had  agreed  to  have  the  five  thousand  rails  split  on  the  1st  of 
April,  A.  can  recover  the  fifty  dollars,  although  he  had  not 
touched  the  work,  and  B,  is  left  to  his  cross  action  against  A. 
on  the  contract. 

If  the  contract  is  wholly  passed  and  executed  before  the 
promise  is  made,  it  is  not  sufficent,  unless  the  consideration 
arose  at  the  instance  or  request  of  the  party  promising  ;  and 
that  request  must  have  been  expressly  made,  or  necessarily 
implied  from  the  moral  obligation  under  which  the  party  was 
])laced,  and  the  consideration  must  have  been  beneficial  to  the 
one  party,  or  onerous  to  the  other. 

A  snb.sisling  legal  obligation  is  a  sufiicient  consideration  for 
a  promise  to  do  it ;  but  it  has  been  an  unsettled  point  whether 
a  mere  moral  obligation  be,  of  itself,  a  sufficient  consideration 
for  a  promise,  exce])t  in  those  cases  in  which  a  prior  legal  obli- 


PRINCIPLES  OF  SUITS.  13 

gation  or  consideration  had  once  existed.  (2  Kent,  465.)  The 
weight  of  authority  is,  that  it  is  not  sufficient.     (Id.) 

The  consideration  must  not  only  be  valuable,  but  it  must  be 
a  legal  consideration ;  and  not  repugnant  to  law  or  sound 
policy,  or  good  morals.  If  the  contract  grows  immediately  out 
of,  or  is  connected  with,  an  illegal  or  innuoral  act,  a  court  of 
justice  will  not  enforce  it.     (Id.) 

The  court  will  allow  the  objection  that  the  consideration  of 
the  contract  was  immoral  or  illegal  to  be  made  even  by  the 
guilty  party  to  the  contract ;  for  the  allowance  is  not  for  the 
sake  of  the  party  who  raises  the  objection,  but  is  founded  on 
general  principles  of  policy.     (2  Blk.  34.) 

ARTICLE    OP    AGREEMENT    FOR    THE    SALE    OF    REAL    ESTATE. 

Article  of  agreement  entered  into  this  1st  day  of  May,  1849, 
between  John  Doe,  of  the  town  of  Oxford,  county  of  Chenango, 
of  the  first  part,  and  Richard  Roe,  of  the  same  place,  of  the 
second  part,  as  follows  : 

The  said  John  Doe  hereby  agrees  with  the  said  Richard  Roe, 
to  sell  him — \Jiere  describe  the  premises] — for  the  sum  of — 
\Jiere  state  the  sum  agreed  to  he  paid,  and  the  time  and  man- 
ner of  payment,  and  how  ariy  sum  remaining  unpaid  is  to  be 
secured] — and  that  he  the  said  John  Doe,  shall  and  will  on 
the  5th  day  of  May,  instant,  upon  receiving  from  the  said 
Richard  Roe  the  said  sum  of,  (fcc,  at  his  own  cost  and  expense, 
execute  a  proper  conveyance  for  the  conveying  and  assuring  the 
fee  simple  of  the  said  premises  to  the  said  Richard  Roe,  free 
from  all  incumbrances,  which  conveyance  shall  contain  a 
general  warranty  and  the  usual  full  covenants. 

And  the  said  Richard  Roe  agrees  with  the  said  John  Doe 
that  he,  the  said  Richard  Roe  shall,  on  the  said  5th  day  of 
May,  instant,  and  on  the  execution  of  said  conveyance,  will 
pay  and  secure  to  be  paid  unto  the  said  John  Doe,  the  said  sum 
of ,  at  the  times  and  in  the  manner  aforesaid. 

And  it  is  further  agreed,  by  and  between  the  parties  hereto, 
as  follows  :  The  said  John  Doe  is  to  have  and  retain  the  pos- 
session of  the  said  premises,  and  receive  and  be  entitled  to  the 
rents  and  profits  thereof,  until  the  said  5th  day  of  May,  instant, 
when  the  possession  of  the  said  premises  is  to  be  delivered  to 
the  said  Richard  Roe. 


14  THE  FORM  AND  GENERAL 

In  witness  whereof  the  parties  have  hereunto  set  their  hands 
and  seals  the  day  and  year  first  above  mentioned. 

John  Doe,         [l.  s.] 
Richard  Roe,  [l.  s.] 
Sealed  and  delivered  in  the  presence  of 
Henry  Rogers. 

agreement  on  the  sale  of  hay. 

It  is  hereby  agreed  by  and  between  John  Smith,  of  the  town 
of  Hempstead,  county  of  Queens,  and  Samuel  Hardy,  of  the 
same  place,  that  he,  the  said  Hardy,  in  consideration  of  eight 
tons  of  clover  hay,  to  him  this  day  sold  by  the  said  Smith,  and 
by  him  agreed  to  be  delivered  to  the  said  Hardy,  free  of  all 
charges  and  expenses  at  his,  the  said  Hardy's  dwelling  house, 
on  or  before  the  5th  day  of  June,  instant — shall  and  will  pay, 
or  cause  to  be  paid,  to  the  said  Smith,  or  his  assigns,  the  sum  of 
fifty-six  dollars,  on  the  delivery  of  the  said  hay. 

And  the  said  John  Smith,  in  consideration  of  such  agreement 
on  the  part  of  the  said  Samuel  Hardy,  promises  and  agrees,  on 
or  before  the  5th  day  of  June,  instant,  at  his  own  proper 
expense,  to  deliver  to  the  said  Hardy,  or  his  assigns,  the  said 
eight  tons  of  hay  so  sold  him,  and  that  he,  the  said  John  Smith, 
warrant  the  same  to  be  of  good  quality. 

In  witness  whereof,  the  parties  above  named  have  hereunto 
set  their  hands,  this  1st  day  of  June,  1849. 

John  Smith. 
Samuel  Hardy. 

agreement  for  labor. 

It  is  hereby  agreed  between  John  Long  and  Peter  Pray,  as 
follows:  The  said  John  Long,  for  the  consideration  hereinafter 
mentioned,  agrees  and  promises  to  continue  Avith,  and  faithfully 
labor  for  and  serve  the  said  Peter  Pray  in  the  business  of  shoe- 
rnaking,  for  the  space  of  six  months,  to  begin  on  the  first  day 
of  May,  one  thousand  eight  hundred  and  forty-nine. 

And  Uh;  said  Peter  Pray  in  consideration  of  the  above  agree- 
menls  and  ]tioiiiisr\s,  agrees  and  promises  lo  and  with  the  said 
John  Long,  th;it  Im;  will  fiiniisli  him  good  and  snilab](>  board, 
lodging  and  washing,  at  the  expense  of  the  said  Peter  Pray, 


PRINCIPLES  OF  SUITS.  15 

and  pay  him,  or  those  legally  entitled  to  receive  his  wages,  the 
sum  of  ninety  dollars  to  be  paid  on  the  first  day  of  November, 
one  thousand  eight  hundred  and  forty-nine. 

And  it  is  mutually  agreed  between  the  above  parties,  that  if 
either  shall  not  desire  to  continue  the  term  of  service  beyond 
the  time  above  mentioned,  that  he  shall  give  the  other  notice 
thereof  twenty  days  before  the  expiration  of  the  said  term. 

John  Long. 

Peter  Pray. 

contract  for  building  a  house. 

Be  it  remembered,  that  on  the  first  day  of  March,  eighteen 
hundred  and  forty-nine,  it  is  agreed  between  John  Doe,  of  the 
village  of  Binghamton,  county  of  Broome,  and  Richard  Roe,  as 
follows  :  The  said  Richard  Roe,  for  the  considerations  herein- 
after mentioned,  does  for  himself,  his  heirs,  executors  and  ad- 
ministrators, covenant  with  the  said  John  Doe,  his  executors, 
administrators  and  assigns,  that  he,  the  said  Richard  Roe,  or 
his  assigns,  shall  and  will,  within  the  space  of  three  months 
next  after  the  date  hereof^  in  a  good  and  workmanlike  manner, 
and  at  his  own  proper  charge  and  expense,  well  and  substan- 
tially erect,  build  and  finish  a  dwelling  house  on  the  premises 
of  the  said  John  Doe  in  Binghamton  aforesaid,  of  the  following 
description — [or  according  to  the  plan  hereutito  annexed] — with 
such  materials  as  the  said  John  Doe  shall  furnish  ;  in  considera- 
tion whereof,  the  said  John  Doe  does  for  himself,  his  executors, 
administrators  and  assigns,  promise  well  and  truly  to  pay  unto 
the  said  Richard  Roe,  or  his  assigns,  the  sum  of  fifteen  hundred 
dollars,  in  manner  following — [here  insert  the  time  and  7nanner 
of  payment.] 

In  witness  whereof  the  parties  have  hereunto  set  their  hands 
and  seals,  the  day  and  3^ear  first  above  written. 

John  Doe,         [l.  s.] 
Richard  Roe,  [l.  s.] 

Sealed  and  delivered  in  presence  of 
James  Brady. 

Partnership. 

Partnership  is  a  contract  between  two  or  more  persons  to 
place  their  money,  effects,  labor,  and  skill,  or  some  or  all  of 


16  THE  FORM  AND  GENERAL 

them,  in  any  lawful  commerce  or  business,  and  to  divide  the 
profit,  and  bear  the  loss  in  certain  proportions.  It  is  not  essen- 
tial to  a  legal  partnership  that  it  be  confined  to  commercial 
business.  It  may  exist  between  attorneys,  mechanics,  owners 
of  a  line  of  stage  coaches,  or  farmers,  as  well  as  between  mer- 
chants and  bankers.  (2  Blk.  240,  part  3.  Kent,  23,  et  seq. 
Story  on  Partnership,  2,  et  seq.)  There  may  be  a  general  part- 
nership at  large,  by  which  the  parties  agree  to  make  a  common 
stock  of  all  the  property  they  respectively  possess,  or  it  may  be 
limited  to  a  particular  branch  of  business,  or  to  one  particular 
subject.  If  two  persons  draw  a  bill  of  exchange,  they  are 
considered  partners  in  respect  of  the  bill,  though  in  every  other 
respect  they  remain  distinct.     (Id.) 

The  two  leading  principles  of  a  contract  of  partnership  are,  a 
common  interest  in  the  stock  of  the  company,  and  a  personal 
responsibility  for  the  partnership  engagements.  If  one  person 
advances  funds  and  another  furnishes  his  personal  services  or 
skill  in  carrying  on  a  trade,  and  is  to  share  in  the  profits,  it 
amounts  to  a  partnership.  It  would  be  a  valid  partnership, 
notwithstanding  the  whole  capital  was  in  the  first  instance 
advanced  by  one  party,  if  the  other  contributed  his  time  and 
skill  to  the  business  ;  and  although  his  proportion  of  gain  and 
loss  was  to  be  very  unequal.  A  joint  possession  however,  does 
not  of  itself  constitute  a  partnership  :  and  therefore  surviving 
partners  and  the  representatives  of  a  deceased  partner,  are  not 
partners,  notwithstanding  they  have  a  community  of  interest  in 
the  joint  stock.  If  several  persons  who  had  never  met  and 
contracted  together  as  partners,  agreed  to  purchase  goods  in  the 
name  of  one  of  them  only,  and  to  take  aliquot  shares  of  the 
purchase,  and  employ  a  common  agent  for  the  purpose ;  they 
do  not  by  that  act,  become  partners  as  answerable  to  the  seller 
in  that  character,  provided  they  are  not  to  be  jointly  concerned 
in  tlie  re-salc  of  their  shares,  and  have  not  permitted  the  agent 
to  hold  them  out  as  jointly  answerable  with  himself.  But  if 
the  purchase  be  on  separate  and  not  on  joint  account,  yet  if  the 
interests  of  the  purchasers  arc  afterwards  mingled  with  a  view 
to  a  joint  sale,  a  partnership  exists  from  the  time  that  the  shares 
are  brought  into  a  common  mass.  (3  Kent,  24,  25,  20.  9  J.  R. 
307.  10  id.  220.  15  id.  409.  4  Paige,  148.  1  Hill,  472.  3  id. 
102.) 

Persons  are  answerable  to  the  world  as  partners,  if  they  hold 


PRINCIPLES  OF  SUITS.  17 

themselves  out  as  joint  traders,  whatever  may  be  the  real  nature 
of  then-  connection,  or  of  the  agreement  under  which  they  act ; 
for  by  lending  their  names  as  partners  they  may  induce  third 
persons  to  give  that  credit  to  the  firm  which  otherwise  it  would 
not  receive,  nor  perhaps  deserve.  As  between  themselves  how- 
ever, actual  intention  is  requisite  to  constitute  a  partnership. 
(3  Kent,  32.     9  J.  R.  470.     1  Wend.  457.) 

The  contract  of  partnership  need  net  be  in  writing.  Though 
there  be  no  separate  articles  of  copartnership,  the  obligation  of 
a  partnership  engagement  may  equally  be  implied  from  the  acts 
of  the  parties. 

Each  individual  member  of  a  partnership  is  liable  to  the 
whole  amount  of  debts,  without  reference  to  the  proportion  of 
his  interest,  or  to  the  nature  of  the  stipulation  between  them 
and  his  associates.  It  is,  however,  a  well  established  principle, 
that  when  a  person  joins  a  partnership  as  a  member,  he  does 
not,  without  a  special  promise,  assume  the  previous  debts  of  the 
firm,  nor  is  he  bound  by  them.  To  render  persons  jointly  liable 
on  a  contract  as  partners,  they  must  have  a  joint  interest  cotem- 
porary  with  the  formation  of  the  contract.     (3  Kent  27,  35,  36.) 

The  act  of  each  partner  in  business  relating  to  the  partner- 
ship, is  considered  the  act  of  and  binds  all.  The  act  of  one 
partner,  thougii  on  his  private  account,  and  contrary  to  the 
private  arrangement  among  themselves,  will  bind  all  the  parties, 
if  made  without  knowledge  in  the  other  party  of  the  arrange- 
ment, and  in  a  matter  which,  according  to  the  usual  course  of 
dealing,  has  reference  to  business  transacted  by  the  firm.  (3 
Kent,  40.)  And  if  one  partner  acts  fraudulently  with  strangers 
in  a  matter  within  the  scope  of  the  partnership  authority,  the 
firm  is  nevertheless  bound  by  the  contract.  The  connection 
itself  is  a  declaration  to  the  world  of  the  good  faith  and  integ- 
rity of  the  members  of  the  association,  and  an  implied  under- 
taking to  be  responsible  for  the  acts  of  each  within  the  compass 
of  the  partnership  concern.     (Id.  46.) 

A  person  may  in  special  cases  receive  part  of  the  profits  of 
the  business  without  becoming  a  legal  or  responsible  partner. 
Thus,  a  person  in  business  may  employ  another  as  a  subordi- 
nate, and  agree  to  pay  him  a  share  of  the  profits,  if  any  shall 
arise,  without  giving  him  the  rights  or  liabilities  of  a  partner. 
So  also,  a  party  may  by  agreement,  receive  by  way  of  rent,  a 

2 


18  THE  FORM  AND  GENERAL 

portion  of  the  profits  of  a  farm  or  tavern,  without  becoming  a 
partner.     (1  Wend.  33.) 

Limited  partnerships,  for  the  transaction  of  any  mercantile, 
mechanical  or  manufacturing  business,  may  be  formed  in  this 
state  by  two  or  more  persons.  Such  partnerships  may  consist 
of  one  or  more  persons,  who  shall  be  called  general  partners,  and 
shall  be  jointly  and  severally  responsible  as  general  partners  in 
other  cases,  and  of  one  or  more  persons  who  shall  contribute,  in 
actual  cash  payments,  a  speeific  sum  as  capital  to  the  common 
stock,  who  shall  be  called  special  partners,  and  who  shall  not 
be  liable  beyond  the  fund  so  contributed  by  him  or  them  to  the 
capital.     (2  R.  S.  49,  sees.  1  and  2.) 

In  order  to  form  a  limited  partnership,  a  certificate  must  be 
made  and  signed  by  the  parties  as  in  the  form  hereinafter  given. 
An  afiidavit  of  one  or  more  of  the  general  partners  must  also  be 
made,  stating  that  the  sums  specified  in  the  certificate  as  having 
been  contributed  by  each  of  the  special  partners,  have  been  actual- 
ly and  in  good  faith  paid  in  cash.  The  certificate  must  be  ac- 
knowledged and  filed  with  the  affidavits  in  the  office  of  the 
clerk  of  the  county  in  which  the  business  is  to  be  carried  on  ; 
and  if  such  business  is  to  be  carried  on  in  more  than  one  county, 
transcripts  of  the  certificate  and  acknowledgments  must  be  filed 
in  such  other  counties.  The  terms  of  the  partnership  when 
registered,  are  to  be  published  for  at  least  six  weeks  immediately 
after  such  registry,  in  the  newspapers  to  be  designated  by  the 
clerk  of  the  county,  and  to  be  published  in  the  senate  district  in 
which  the  business  shall  be  carried  on.  (1  R.  S.  49,  50,  sec.  4, 
5,  6,  7,  8,  9.     .5  Hill,  309  to  id.  479.) 

The  general  partners  only  may  transact  the  business  of  a 
limited  partnership.  A  special  partner  may  examine  into  the 
state  of  the  partnership  concerns,  and  advise  as  to  their  manage- 
ment ;  but  his  name  cannot  be  used  in  the  transactions  of  the 
firm  ;  nor  can  he  interfere  in  the  management  thereof,  either  as 
agent,  attorney,  or  otherwise,  without  rendering  himself  liable 
as  a  general  partner.  The  business  is  to  be  conducted  under  a 
firm  in  which  the  names  of  the  general  partners  only  shall  be 
inserted  without  the  addition  of  the  word  "Company,"  or  any 
other  gen<ml  (rru).  (2  R.  S.  50,  51,  13,  17.  5  Hill,  309.  6  Id. 
479.) 

Every  association  or  company  formed  for  the  purpose  of 
transpori.'itinn  of  passengers  or  property,  either  by  boats,  vessels, 


PRINCIPLES  OF  SUITS.  19 

or  stages,  is  required  to  make  a  statement  of  the  names  of  the 
persons  composing  such  association  or  company,  and  to  file  a 
copy  thereof  in  the  office  of  the  clerk  of  each  county  through 
which  its  business  is  transacted.  Until  such  statement  be  filed 
no  suit  will  he  abated  on  account  of  the  non-joinder  of  any  of 
the  members  of  the  association  or  company  against  which  the 
action  may  be  brought.     (Laws  of  1836,  p.  385.) 

CERTIFICATE    OP    LIMITED    PARTNERSHIP. 

State  of  NeiD  York,  Chenango  County^  ss. — This  is  to  certify 
that  the  undersigned  have  formed  a  limited  partnership  pursu" 
ant  to  the  statute  in  such  case  made  and  provided,  under  the 
name  and  firm  of  Long  and  Day.  That  the  general  nature  of 
the  business  to  be  transacted,  is  the  buying  and  selling  groceries 
and  such  other  articles  as  are  usually  dealt  in  by  wholesale  and 
retail  grocers.  That  James  Long  and  Joseph  Day,  who  re- 
spectively reside  in  the  city  of  Buffalo,  are  the  general  partners. 

That  Samuel  Peters  and  Henry  Brady,  who  reside  at  Brook- 
lyn, county  of  Kings,  are  the  special  partners.  That  the  said 
Samuel  Peters  and  the  said  Henry  Brady  have  each  contributed 
the  sum  of  five  thousand  dollars  as  capital  towards  the  common 
stock ;  and  that  the  said  partnership  is  to  commence  on  the  1st 
day  of  September,  1849,  and  is  to  terminate  on  the  31st  day  of 
August,  1854.     Dated  this  1st  day  of  August,  1849. 

James  Long,  Samuel  Peters, 

Joseph  Day,  Henry  Brady. 

certificate  of  acknowledgment. 

Chenango  County,  ss. — On  this  1st  day  of  August,  1849, 
James  Long,  Joseph  Day,  Samuel  Peters,  Henry  Brady,  known 
to  me  to  be  the  persons  described  in,  and  who  made  and  signed 
the  preceding  certificate,  came  before  me  and  severally  acknow- 
ledged that  they  had  made  and  signed  the  same. 

Alfred  B.  Ketcham, 
County  Judge  of  Chenango  County. 

AFFIDAVITS    TO    BE    FILED    WITH    THE    CERTIFICATE- 

Chenango  County,  ss. — James  Long  being  duly  sworn,  says, 
that  he  is  one  of  the  general  partners  named  in  the  above  cer- 


20  THE  FORM  AND  GENERAL 

tificate,  and  that  the  sums  specified  in  said  certificate  to  have 
been  contributed  by^each  of  the  special  partners  to  the  common 
stock,  have  been  actually  and  in  good  faith  paid  in  cash. 

James  Long. 
Subscribed    and    sworn  before  me,  this  1st  day  of  August, 
1849.  A.  B.  Ketch  AM, 

County  Judge  of  Chenango  Coimty. 

Of  the  Sale  and  Mortgage  of  Personal  Proiieriy, 

All  deeds  of  gift,  all  conveyances,  and  all  transfers  or  assign- 
ments, verbal  or  written,  of  goods,  chattels,  or  things  in  action, 
made  in  trust  for  the  use  of  the  person  making  the  same,  shall 
be  void  as  against  the  creditors  existing  or  subsequent  to  such 
person.     (2  R.  S.  195,  sec.  1.) 

Every  contract  for  the  sale  of  any  goods,  chattels,  or  things 
in  action,  for  the  price  of  fifty  dollars  or  more,  shall  be  void, 
unless, 

1.  A  note  or  memorandum  of  such  contract  be  made  in  wri- 
ting, and  be  subscribed  by  the  parties  to  be  charged  thereby ;  or 

2.  Unless  the  buyer  shall  accept  and  receive  part  of  such 
goods,  or  the  evidences  or  some  of  them,  of  such  things  in 
action ;  or 

3.  Unless  the  buyer  shall,  at  the  time,  pay  some  part  of  the 
purchase  money.     (Id.  sec.  3.) 

The  signature  of  one  party  only  to  the  note  or  memorandum, 
is  sufficient,  and  such  party  is  prevented  by  his  signature  from 
denying  that  the  contract  was  validly  executed,  though  the 
papers  be  not  signed  by  the  party  who  sues  for  the  performance. 
(3  Johns.  Cas.  GO.  14  J.  R.  487.  26  Wend.  341.)  It  is  suffi- 
cient likewise,  if  the  note  or  memorandum  be  made  by  a  broker 
employed  to  effect  the  purchases  ;  and  if  he  settles  the  bargain, 
he  is  considered  as  agent  for  both  parties,  and  the  instnmient  is 
liberally  construed  without  a  scrupulous  regard  to  forms.  (2 
Kent,  510.) 

Whenever  goods  shall  be  sold  at  public  auction,  and  the  auc- 
tioneer shall,  at  tlu;  time  of  sale,  enter  in  a  sale  book  a  memo- 
randum specifying  the  nature  and  price  of  the  property  sold,  the 
tf;rms  of  sale,  the  name  of  the  purchaser,  and  the  name  of  the 
person  on  whose  account  the  sale  is  made,  such  memorandum 


PRINCIPLES  OF  SUITS.  21 

shall  be  deemed  a  note  of  the  contract  of  sale  within  the  mean- 
ing of  the  statute. 

Every  sale  made  by  a  vendor  of  goods  and  chattels  in  his 
possession,  or  under  his  control,  and  every  assignment  of  goods 
and  chattels  by  way  of  mortgage  or  security,  or  upon  any  con- 
dition whatever  unless  the  same  be  accompanied  by  immediate 
delivery,  and  be  followed  by  an  actual  and  continued  change 
of  possession  of  the  things  sold,  mortgaged  or  assigned,  shall  be 
presumed  to  be  fraudulent  and  void  as  against  the  creditors  of 
the  vendor,  or  the  creditors  of  the  person  making  such  assign- 
ment or  subsequent  purchasers  in  good  faith,  and  shall  be  con- 
clusive evidence  of  fraud,  unless  it  shall  be  made  to  appear  on 
the  part  of  the  persons  claiming  under  such  sale  or  assignment, 
that  the  same  was  made  in  good  faith,  and  without  any  intent 
to  defraud  such  creditors  or  purchasers.     (2  R.  S.  195,  sec.  5.) 

It  would  seem,  that  although  a  mortgage  of  personal  property 
is  made  in  good  faith  and  without  any  intent  to  defraud,  yet  if 
there  is  not  an  immediate  delivery,  followed  by  an  actual  and 
continued  change  of  possession,  the  mortgage  is  void  as  against 
the  creditors  of  the  mortgagor,  unless  the  continued  possession 
in  the  mortgagor  is  satisfactorily  explained. 

The  words  actual  and  continued  change  of  possession,  as 
used  in  the  statute,  are  to  be  interpreted  literally,  and  will  not  be 
satisfied  by  a  mere  legal  or  constructive  delivery,  and  though 
the  vendor  be  suffered  to  remain  in  possession  in  good  faith  as 
clerk  of  the  vendee,  this  will  not  relieve  the  latter  from  the 
burthen  of  proving  good  faith  in  other  resi)ects.     (4  Hill,  271.) 

But  a  mortgage  of  goods  and  chattels,  though  unaccompanied 
by  an  immediate  delivery,  and  not  followed  by  an  actual  and 
immediate  change  of  possession  of  the  things  mortgaged,  is  not 
void,  if  it  be  made  to  appear  on  the  part  of  the  mortgagee  that 
the  same  was  made  in  good  faith,  and  without  an  intent  to  de- 
fraud purchasers.  There  will  be  a  strong  presumption  of  fraud- 
ulent intent,  which  will  be  conclusive,  unless  it  is  rebutted,  so  as 
to  make  the  good  faith  of  the  transaction  appear  affirmatively. 
(23  Wend.  639.) 

If  the  property  be  ponderous,  or  fixed  to  the  freehold,  and  pos- 
session be  taken  from  the  debtor  within  a  reasonable  or  conve- 
nient time,  its  remaining  in  the  debtor's  hands  is  not,  under  the 
circumstances,  evidence  of  fraud.     (2  J.  R.  418.) 

The  question  of  fraud  resulting  from  possession  by  the  debtor, 


22  THE  FORM  AND  GENERAL 

may  arise  in  various  other  ways  than  between  mortgagees  and 
creditors.  Thus,  where  a  plaintiif  buys  property  sold  under 
his  execution,  and  leaves  it  in  the  possession  of  the  defendant, 
without  any  good  excuse  shown,  the  sale  is  void,  as  against 
other  creditors  of  the  defendant,  notwithstanding  the  plaintitf 
subsequently,  and  before  levy  under  another  execution,  reduces 
the  property  to  his  actual  possession.  (2  Wend,  169.)  But 
where  the  purchaser  under  an  execution,  is  not  the  creditor,  but 
some  third  person  purchasing  bona  fide,  his  leaving  the  goods 
in  the  debtor's  hands  is  not  fraudulent.     (9  J.  R.  197.) 

Your  being  in  possession  of  my  goods,  does  not  expose  them 
to  execution  against  you,  though  you  may  be  the  reputed  owner, 
unless  there  be  some  fraudulent  or  deceptive  purpose  shown  or 
implied  from  the  circumstances  of  the  case.  (9  J.  R.  197.) 
Nor  does  my  knowing  of  a  judgment  against  the  vendor,  render 
my  judgment  against  him  void,  unless  I  act  fraudulently ; 
though  it  is  void,  if  I  purchase  with  a  view  to  defeat  the  judg- 
ment.    (8  J.  R.  446.     12  id.  320.) 

Every  mortgage  or  conveyance  intended  to  operate  as  a  mort- 
gage of  goods  and  chattels  hereafter  made  which  shall  not  be 
accompanied  by  immediate  delivery,  and  be  followed  by  an 
actual  and  continue  changed  of  possession  of  the  things  mort- 
gaged, shall  be  absolutely  void  as  against  the  creditors  of  the 
mortgagor,  and  as  against  subsequent  purchasers  and  mort- 
gagees in  good  faith,  unless  the  mortgage  or  a  true  copy  thereof, 
shall  be  filed.     (2  R.  S.  196,  sec.  9.) 

The  instrument  mentioned  in  the  preceding  section  shall  be 
filed  in  the  several  towns  and  cities  in  this  state,  where  the 
mortgagor  therein,  if  a  resident  of  this  state,  shall  reside  at  the 
time  of  the  execution  of  such  instrument.  In  the  city  of  New 
York,  such  instrument  shall  be  filed  in  the  office  of  the  Register 
of  the  said  city.  In  the  several  cities  of  this  state,  other  than 
the  city  of  New  York,  and  in  the  several  towns  in  the  state  in 
which  a  clerk's  office  is  kept,  in  such  office  ;  and  in  each  of  the 
other  towns  in  this  state,  in  the  office  of  the  town  clerk  thereof; 
and  such  register  and  clerks  are  hereby  required  to  file  all  such 
instruments  aforesaid  presented  to  them  respectively  for  that 
purpose,  and  to  endorse  thereon  the  time  of  receiving  the  same, 
and  shall  deposit  the  same  in  the  respective  offices,  to  be  kept 
there  for  the  inspection  of  all  persons  interested.  (2  R.  S.  196, 
sec.  10.) 


PRINCIPLES  OF  SUITS.  23 

Every  mortgage  filed  in  pursuance  of  the  preceding  act,  shall 
cease  to  be  valid  as  against  the  creditors  of  the  person  making 
the  same,  or  against  subsequent  purchasers,  or  mortgagees  in 
good  faith,  after  the  expiration  of  one  year  from  the  filing 
thereof,  unless  within  thirty  days  next  preceding  the  expiration 
of  said  term  of  one  year,  a  true  copy  of  such  mortgage,  together 
with  a  statement  exhibiting  the  interest  of  the  mortgagee  in  the 
property  thereby  claimed  by  him,  by  virtue  thereof,  shall  be 
again  filed  in  the  office  of  the  clerk  or  register  aforesaid,  of  the 
town  or  city  where  the  mortgagor  shall  then  reside.  (2  R.  S. 
71,  sec.  11.) 

Though  the  statute  requires  a  personal  mortgage  to  be  re- 
newed yearly,  yet  this  requirement  is  only  necessary  so  far  as 
to  protect  the  lien  as  against  creditors,  and  is  not  necessary  as 
between  the  parties.  The  mortgage  remains  good  between 
them  without  filing  or  renewing.     (J.  R.  337.) 

On  the  mortgage  of  a  chattel,  if  the  condition  be  forfeited,  the 
title  of  the  mortgagee  becomes  absolute,  and  he  may  reduce  the 
property  to  possession,  so  that  the  mortgagor  cannot  by  tender- 
ing the  money,  as  in  case  of  a  pledge,  entitle  himself  to  an  ac- 
tion against  the  mortgagee  for  refusing  to  re-deliver  the  property. 
(9  Wend.  80.     7  Cow.  290.) 

The  distinction  between  a  pledge  and  a  7?iortgage  of  goods  is 
important.  Delivery  always  accompanies  a  pledge,  but  a  mort- 
gage of  goods  is  often  valid,  without  delivery,  (5  J.  R.  258, 
261,)  and  if  the  pledgee  take  a  delivery  and  yet  immediately  re- 
deliver the  thing  pledged  to  the  owner — or  permit  it  to  go  back 
into  his  possession,  the  property  in  the  pledge  is  determined  and 
gone.  (Aik.  R.  115.)  By  a  pledge  the  special  property  only 
passes  to  the  pledgee,  the  general  property  remaining  in  the 
pledgor.  By  a  mortgage  the  whole  legal  title  passes  conditionally 
to  the  mortgagee  ;  and  if  not  redeemed  at  the  time  stipulated, 
the  title  becomes  absolute.     (Id.) 

Personal  property  mortgaged,  may  after  forfeitttre,  be  bound 
by  virtue  of  an  execution  against  the  mortgagee,  although  it 
remain  in  the  hands  of  the  mortgagor,  and  the  mortgagee  after 
forfeiture  may  maintain  an  action  for  the  property  mortgaged. 
(5  Cow.  323.) 

Where  a  chattel  mortgage  contained  a  provision  that  upon 
default  of  payment  of  the  mortgage  debt,  at  the  time  agreed 
on,  the  mortgagee  might  sell  the  property  at  auction  or  private 


24  THE  FORM  AND  GENERAL 

sale,  and  pay  the  debt  and  expenses  out  of  the  avails,  it  was 
held  that  the  mortgagee's  title  became  absolute  at  law  upon  de- 
fault in  payment,  without  any  sale  being  inade.  (2  Denio  R. 
170.) 

Warranty  on  tSale  of  Goods. 

In  every  sale  of  personal  property  there  is  an  implied  war- 
ranty that  the  vendor  has  a  good  and  valid  title  to  the  thing 
sold.  A  fair  price  implies  a  warrant  of  title  ;  and  the  purchaser 
may  have  satisfaction  from  the  seller  if  he  sells  the  goods  as 
his  own,  and  the  title  proves  deficient.  (1  J.  R.  274.)  If,  how- 
ever, the  possession  be  at  the  time  in  another,  and  there  be  no 
warranty  of  title,  the  party  buys  at  his  peril;  (1  Salk.  210;) 
but  if  in  such  case,  the  seller  affirms  the  thing  to  be  his,  it  is 
said  he  thereby  warrants  the  title.     (3  J.  R.  57,  58.) 

The  seller  is  not  bound  to  answer  for  the  quality  or  goodness 
of  the  article  sold,  unless  he  expressly  warranted  the  goods  to 
be  sound  or  unless  he  has  made  a  fraudulent  representation  or 
used  some  fraudulent  concealment  concerning  them,  and  which 
amounts  to   a  warranty  at  law.     (2  Kent,  479.) 

The  distinction  between  the  responsibility  of  the  seller  as  to 
the  title  and  as  to  the  quality  of  goods  sold,  is  well  established. 
(2  Comyn  on  Con.  263.  2  East,  314.)  The  rule  applies  to  the 
case  where  the  article  is  equally  open  to  the  inspection  and  ex- 
amination of  both  parties,  and  the  purchaser  relies  on  his  own 
information  and  judgment,  but  not,  to  a  case  where  the  purcha- 
ser has  ordered  goods  of  a  certain  character,  and  relies  on  the 
judgment  of  the  seller.  Nor  does  the  rule  apply  where  goods 
of  a  certain  described  quality  are  ofTcred  for  sale,  and  when  de- 
livered they  do  not  answer  the  description  directed  or  given  in 
the  contract.     (2  Kent,  479.) 

If  the  seller  be  ignorant  of  any  unsoundness  or  other  defect 
ui  tlie  article,  sold  a  mtuc  representation  of  soundness,  will  not 
render  him  liable.  If  it  is  intended  to  nrake  the  seller  account- 
able under  such  circumstances,  he  nuist  be  required  to  w^rant 
the  thing  sound  or  free  from  defect.  (2  Cai.  48.  4  J.  11^21.) 
Nor  is  a  mere  false  assertion  of  value  where  no  warranty  is  in- 
tended, a  ground  of  H'.WvA'  to  a  purchaser  because  the  assertion 
is  matter  of  ojjinion  whicii  does  not  imply  knowledge,  and  in 
which  men  may  diller  ;  every  person  reposes  at  his  peril  in  the 


PRINCIPLES  OF  SUITS.  25 

opinion  of  others  when  he  has  equal  opportunity  to  form  and 
exercise  his  own  judgment ;  (5  J.  R.  354  ;)  and  if  the  seller  re- 
presents what  he  himself  believes  as  to  the  qualities  or  value  of 
an  article,  and  leaves  the  determination  to  the  judgment  of  the 
buyer,  there  is  no  fraud  or  warranty  in  the  case.  Nothing  is 
more  common  than  for  merchants  in  selling  goods  to  recommend 
them  highly  to  the  purchaser  as  of  a  superior  quality,  as  hav- 
ing cost  so  much,  and  as  being  worth  so  much  more  than  the 
price  at  which  they  offer  them  for  sale,  and  yet  if  the  fact  should 
turn  out  to  be  otherwise,  an  action  would  not  lie  unless  fraud 
or  a  warranty  could  be  made  out ;  for  the  goods  are  exposed  to 
the  examination  of  the  buyer,  who  judges  for  himself,  and  if  he 
place  implicit  confidence  in  the  seller,  he  does  so  at  his  peril. 
(1  Cow.  316.) 

Although  by  the  terms  of  the  contract,  an  article  agreed  to  be 
delivered,  is  to  be  of  a  merchantable  quality  ;  still,  if  an  inferior 
article  be  delivered  and  accepted,  the  purchaser  when  called  on 
for  payment,  is  not  entitled  to  a  reduction  from  the  contract 
price,  on  the  ground  of  the  inferior  quality  of  the  article.  (20 
Wend.  61.) 

When  goods  are  discovered  to  be  unsound,  or  not  to  answer 
the  order  given  for  them,  the  purchaser  ought  immediately  to 
return  them  to  the  vendor,  or  give  him  notice  to  take  them 
back,  and  thereby  rescind  the  contract ;  or  he  will  be  presumed 
to  acquiesce  in  the  quality  of  the  goods.  (1  Camp.  190.)  In 
the  case  of  a  breach  of  warranty,  he  may  sue  upon  it  Avithout 
returning  the  goods  ;  (12  Wend.  566  ;)  but  he  must  return  them 
and  rescind  the  contract  within  a  reasonable  time  before  he  can 
maintain  an  action  to  recover  back  the  price. 

As  a  general  rule,  each  party  to  a  contract  is  bound  to  com- 
municate to  the  other  his  knowledge  of  material  facts,  provided 
he  knows  the  other  to  be  ignorant  of  them,  or  they  are  not 
equally  within  the  reach  of  his  observation  ;  and  if  the  vendor 
says  or  does  any  thing  to  divert  the  eye  or  obscure  the  observa- 
tion of  the  buyer,  even  in  relation  to  open  defects,  he  would  be 
guilty  of  an  act  of  fraud.     (3  Blk.  Com.  161.) 

An  action  will  lie  against  a  person  not  interested  in  the  prop- 
erty, for  making  a  false  representation  to  the  seller,  wdiereby  he 
sustains  damage  by  trusting  the  purchaser  on  credit  of  such 
representations,     (6  T.  R.  181.     6  Cow.  346.     2  Wend.  385.) 

No  particular  form  of  words  is  necessary  to  constitute  a  war- 


26  THE  FORM  AND  GENERAL 

ranty.  The  word  "  warrant"  need  not  be  used  ;  any  word 
equivalent  to  warrant  is  sufficient.  (10  Wend.  411.)  But  the 
assertion  or  affirmation  concerning  the  thing  sold  to  be  evidence 
of  a  warranty,  should  be  a  positive  and  unequivocal  one,  upon 
which  the  buyer  relies,  and  which  is  understood  by  the  parties 
as  an  ahsolute  assertion,  and  not  the  mere  expression  of  opin- 
ion.    (4  Cow.  440.) 

An  affirmation  that  a  horse  is  not  lame,  accompanied  by  a 
declaration  of  the  seller,  that  he  would  not  be  afraid  to  warrant 
him,  is  enough  to  establish  a  warranty.     (13  Wend.  277.) 

If  a  man  should  say  on  the  sale  of  a  horse,  '■'■  I  promise  you 
the  horse  is  sound"  it  would  amount  to  an  express  warranty; 
so  if  a  seller  say  to  the  buyer  of  a  horse  in  the  course  of  deal- 
ing, "  you  may  depend  upon  it  the  horse  is  perfectly  quiet  and 
free  from  vice,"  it  amounts  to  a  warranty.  (19  J.  R.  290.)  Bat 
an  assertion  by  the  vendor  to  the  vendee,  at  the  time  of  selling 
a  mare,  that  he  was  sure  she  was  safe  and  kind,  and  gentle  in 
harness,  was  held,  in  Pennsylvania,  to  be  only  a  representation 
and  not  to  constitute  a  warrant  or  express  promise,  though  the 
authority  of  the  case  has  been  very  justly  questioned.  (1  Cow. 
R.  316.) 

If  a  person  at  the  time  of  selling  a  horse  say,  "  I  never  war- 
rant, but  he  is  sound  as  far  as  I  know,"  this  is  a  qualified  war- 
ranty, and  the  purchaser  may  maintain  an  action  upon  it  if  he 
can  show  that  the  horse  was  unsound  to  the  knowledge  of  the 
seller.     (4  Carr.  &  Payne,  45.) 

Upon  the  breach  of  a  warranty  of  a  horse,  the  measure  of 
damages  is  the  price  paid  for  him.  If  the  horse  be  not  returned, 
the  measure  of  damages  is  the  difference  between  the  value  of 
the  horse  at  the  time  of  the  sale,  considering  him  as  sound  and 
his  value  with  all  the  defects  complained  of  The  price  paid 
would  be  however  strong  evidence  of  what  the  horse  would 
have  been  worth,  if  sound,  and  should  control ;  unless  it  be 
clear  that  the  actual  value  was  either  greater  or  less.  (4  Hill, 
625.    2  lb.  288.) 

in  tlie  contract  for  the  sale  and  delivery  of  an  article  of  mer- 
chandize at  a  future  day,  when  there  is  no  selection  or  setting 
apart  at  the  time,  of  particular  articles  of  property  so  as  to  pass 
the  property  to  the  purchaser,  merchantable  quality,  such  as 
at  least  will  bring  the  average  market  price,  is  always  intended. 
(23  Wend.  350.) 


PRINCIPLES  OF  SUITS.  27 

In  executory  agreements  to  sell  indeterminate  things,  there  is 
an  implied  Avarranty  that  the  things  to  be  delivered  shall  at 
least  be  free  from  any  remarkable  defect.  If  the  article  deliv- 
ered came  short  of  a  medium  quality  or  goodness,  it  may  be 
returned  after  the  purchaser  has  had  a  reasonable  time  to  in- 
spect it,  and  it  is  sufficient  to  entirely  defeat  the  sale  if  there  be 
notice  to  take  it  back,  assigning  the  true  cause.  (23  Wend. 
350.) 

If  the  article  be  sold  by  the  sample  and  it  be  a  fair  specimen 
of  the  article,  and  there  be  no  deception  or  warranty  on  the 
part  of  the  vendor,  the  vendor  cannot  rescind  the  sale.  But 
such  a  sale  amounts  to  an  implied  warranty  that  the  article  is  in 
bulk  of  the  same  kind,  and  equal  in  quality  with  the  sample. 
If  the  article  should  turn  out  not  to  be  merchantable  from  some 
latent  principle  or  infirmity  in  the  sample  as  well  as  in  the  bulk 
of  the  commodity,  the  seller  is  not  answerable  ;  the  only  war- 
ranty is  that  the  whole  quantity  answers  the  sample.  (2  East, 
314.) 

The  mere  exhibition  of  samples  at  the  time  of  the  sale,  is 
not  of  itself  evidence  of  an  agreement  to  sell  by  sample.  It  is 
for  a  jury,  or  justice,  when  there  is  no  jury,  to  say  under  all  the 
circumstances  of  the  case,  whether  the  sale  was  intended  by 
the  parties  as  a  sale  by  sample.     (18  Wend.  425.) 

I  engage  a  mechanic  to  manufacture  an  article  in  his  line  of 
business,  without  any  stipulation,  the  law  implies  an  obligation 
to  make  it  in  a  skilful  and  workman-like  manner.  So,  if  I  con- 
tract with  a  merchant  to  furnish  me  with  a  quantity  of  wheat 
at  a  future  day,  for  a  certain  price,  without  any  other  stipula- 
tion, the  law  implies  that  it  shall  be  of  a  good  and  merchanta- 
ble quality  and  condition.      (9  Wend.  20,  28.) 

When  there  is  an  agreement  in  writing  for  the  sale,  no  action 
will  lie  on  a  parol  warranty ;  for  the  writing  is  a  higher  and 
more  certain  species  of  evidence.  If  it  contain  a  warranty,  this 
should  form  the  ground  of  action,  but  if  it  do  not,  it  is  conclu- 
sive evidence  that  no  warranty  was  intended.  (1  J.  R.  414. 
3  Wend.  459.)  When,  however,  a  party  is  induced  by  false 
and  fraudulent  representations  to  enter  into  a  written  agree- 
ment, and  is  thereby  damnified,  he  may  maintain  an  action 
for  the  artifice,  and  give  parol  evidence  of  the  representations, 
although  they  are  not  noticed  in  the  written  contract,  (5  Dow. 
&  Ryl.  490.) 


28  THE  FORM  AND  GENERAL 

Bonds. 

A  bond  is  a  sealed  instrument  whereby  the  obligor  binds  him- 
self, his  heirs,  executors  and  administrators  to  pay  a  certain  sum 
of  money  to  another ;  (2  Bla.  Com.  240  ;)  usually,  however, 
there  is  a  condition  subjoined  making  the  bond  void  on  the  pay- 
ment of  a  certain  sum,  or  the  performance  of  certain  acts,  in 
which  case  the  bond  is  called  conditional.  If  the  condition  be 
not  fulfilled,  the  bond  becomes  forfeited  and  an  action  may  be 
brought  upon  it. 

All  persons  who  have  the  legal  ability  to  make  general  con- 
tracts, may  bind  themselves  by  bond,  (2  Steph.  N.  P.  1235,)  and 
!n  this  particular  the  same  rules  that  have  been  laid  down  Vv^th 
regard  to  simple  contracts,  will  also  apply  to  bonds ;  but  an 
agent  cannot  bind  his  principle  by  such  an  obligation,  unless  he 
had  authority  under  seal  so  to  do.  (Steph.  N.  P.  1236.)  Any 
thing  which  will  render  a  simple  contract  void,  will  also  as  a 
general  rule,  vitiate  a  bond ;  the  condition  to  be  valid,  must  be 
for  the  performance  of  some  act  which  is  both  lawful  and  'pos- 
sible. It  must  be  both  sensible  and  certain,  and  in  no  way  re- 
pugnant to  the  obligation.  (2  Leigh,  N.  P.  752.)  If  the  con- 
dition be  idle  and  uncertain  or  contrary  to  some  rule  of  mere 
jjositive  law,  the  condition  only  is  void,  and  the  bond  stands 
single  and  unconditional.  But  if  the  condition  be  to  per- 
form some  act  bad  in  itself  and  contrary  to  the  laws  of  nature, 
then  the  whole  instrument  is  void.  (2  Blk.  Com.  240.)  When 
the  condition  consists  of  two  distinct  parts  in  the  alternative, 
one  legal  and  the  other  illegal,  but  not  bad  in  itself,  the  bond 
may  be  good  in  part  but  void  as  to  the  residue.  But  if  the  bond 
constitute  one  entire  agreement,  part  of  it  being  legal  and  part 
of  it  illegal,  then  the  whole  bond  is  void.  (2  Steph.  N.  P.  1236. 
10  Peters'  Rep.  343.) 

Where  in  an  action  on  a  bond,  the  amount  in  controversy  ex- 
ceeds one  hundred  dollars,  a  justice  has  no  jurisdiction  ;  but 
though  the  penalty  exceed  one  hundred  dollars,  if  the  condition 
be,  for  the  payment  of  a  sum  of  money  not  exceeding  one  hun- 
dred dollars,  or  of  several  sums  not  exceeding  in  the  aggregate 
that  ainount,  an  action  may  be  brought  before  a  justice  on  such 
condition,  and  a  recovery  of  cilher  of  such  instalments  will  not 
bar  a  subsequent  suit  for  the 'other  instalments  which  may  Iiave 
becouKJ  due  after  the  coininoncemcnt  of  the  former  suit.  (Code 
sec.  53.) 


PRINCIPLES  OF  SUITS.  29 

The  obligor  of  a  bond  may  be  discharged  from  liability  in 
various  ways.  His  name  may  be  stricken  out  and  the  name  of 
another  inserted,  by  the  consent  of  all  of  the  parties,  without 
vitiating  the  bond.  (9  Cranch,  28.)  He  may  be  excused  by 
the  act  or  negligence  of  the  obligee,  or  he  may  be  excused  from 
liability,  if  the  performance  of  tlie  obligation  imposed  on  him 
became  subsequently  impossible  by  the  act  of  God.  He  will 
also  be  discharged  by  the  alteration,  without  his  knowledge,  of 
the  instrument.  (2  Leigh's  N.  P.  758.)  But  an  alteration  made 
by  a  clerk  in  the  custom  house  to  correct  a  mistake,  and  which 
did  not  change  the  construction,  was  held  to  be  the  act  of  a 
stranger,  and  immaterial.     (1  Paine,  336.) 

Promissory  Notes. 

Very  common  grounds  of  action  on  contract  before  Justices  of 
the  Peace,  are  promissory  notes.  A  promissory  note  is  a  written 
promise  by  one  person  to  another,  for  the  payment  of  money  at 
a  specified  time,  absolutely,  and  at  all  events.  A  promissory  note 
is  not  confined  to  any  set  form  of  words ;  a  promise  to  deliver, 
or  to  be  accountable,  or  to  be  responsible  for  so  much  money,  is 
a  good  note.     (3  Kent,  74,  75.) 

Though  it  would  be  safer  to  date  these  instruments,  the  date 
is  not  indispensable  ;  if  a  note  be  payable  two  months  after  date, 
and  no  date  be  given,  the  court  will  intend  it  to  be  payable  two 
months  after  the  day  upon  which  it  was  made.    (13  East,  517.) 

It  is  not  necessary  that  the  maker  should  subscribe  his  name 
at  the  bottom  of  the  note.  It  is  sufficient  if  the  maker's  name 
be  on  any  part  of  the  note,  as  if  it  should  run,  "  I,  A.  B.,  promise 
to  pay  C.  D.  or  order,  one  hundred  dollars."     (3  Kent,  78.) 

The  instrument  ought  to  specify  clearly,  by  and  to  whom 
payable  ;  a  note  to  be  paid  by  A.  or  else  B.,  is  bad  ;  so  is  a  note 
payable  to  A.  or  B.  (4  Wend.  575.)  Where  two  persons  are 
of  the  same  name,  it  is  better  to  distinguish  them  by  their  place 
of  residence,  or  in  some  other  way,  by  which  they  can  be  iden- 
tified. 

Promissory  notes  must  be  exclusively  and  absolutely  for  the 
payment  of  money.  (3  Kent,  75.)  If  payable  in  goods,  or  in 
any  thing  else  besides  money,  they  are  not  notes  but  mere  con- 
tracts, binding  but  not  negotiable.  (2  Mass.  R.  524.  6  Cow. 
108.) 


30  THE  FORM  AND  GENERAL 

The  money  mentioned  in  the  instrument  must  be  payable 
absolutely  and  at  ail  events,  and  not  made  to  depend  on  any 
uncertainty  or  contingency.  (3  Kent,  76.)  The  event  on  which 
the  instrument  is  to  become  payable,  must  also  be  fixed  and 
certain.  Thus  it  has  been  held  that  a  note  payable  Avithin  two 
months  after  such  a  ship  is  paid  off,  is  a  good  negotiable  note, 
as  the  event  is  morally  certain.  So  a  note  payable  six  weeks 
after  the  death  of  the  maker's  father  is  a  good  note,  and  it  is  no 
consequence  how  long  payment  is  to  be  postponed. 

Whoever  has  the  legal  proj^erty  of  these  instruments  is 
called  the  holder.  When  drawn  in  a  particular  form,  they  are 
transferable  from  hand  to  hand.  Hence  promissory  notes  are 
of  two  kinds,  negotiable  and  ?iot  negotiable. 

The  most  important  characteristic  of  a  negotiable  note  is, 
that  it  may  be  transferred  from  one  person  to  another  in  the 
course  of  trade,  so  that  the  holder  may  sue  upon  it  in  his  own 
name.  A  note,  to  be  negotiable,  must  be  payable  to  order  or 
bearer,  for  the  payment  of  money  only,  and  without  any  condi- 
tion or  contingency.  (6  Cow,  108.)  It  must  have  negotiable 
words  on  its  face  showing  it  to  be  the  intention  to  give  it  a  trans- 
ferable quality,  without  them  a  promissory  note  is  valid,  as  be- 
tween the  parties  ;  but  if  it  wants  negotiable  words  it  cannot  be 
transferred  or  negotiated.  (3  Kent,  74.)  Notes  payable  to  or- 
der, can  be  negotiated  only  by  endorsement ;  but  if  payable  to 
bearer,  they  may  be  transferred,  either  by  endorsement  or  mere 
delivery.     (9  J.  R.  120.     3  J.  R.  439.) 

Notes  not  negotiable  are  all  such  as  are  not  payable  in  cash 
absolutely ;  or,  if  payable  in  cash,  are  not  drawn  payable  to 
order  or  bearer.  Such  notes,  however,  may  be  sold  and  trans- 
ferred, so  as  to  pass  the  interest  in  them  to  the  purchaser. 

It  is  usual  to  insert  the  words  "value  received"  in  a  note; 
but  they  arc  unnecessary;  and  value  is  implied  in  every  ncgotia- 
l>lc  note  and  endorsement.  The  burthen  of  proof  rests  upon 
the  other  party  to  rebut  the  presumption  of  validity  and  value. 
(3  Kent,  77.)  The  note  itself  imports  a  consideraticn,  the  same 
as  a  specialty,  unless  the  contrary  appears  in  the  instrument. 
(8  J.  R.  120.  9  id.  217.)  The  note  may  be  made  payable  so 
many  days,  iiioiillis  or  yerirs,  after  date  or  after  sight;  or  it 
may  he  made  payable  at  sight,  or  on  demand,  or  on  a  particular 
day  meiilioned. 

Jfno  time  for  iiayni'^iil  is  mentioned  in  the  note,  it  is  payable 


PRINCIPLES  OF  SUITS.  31 

immediately  on  demand,  the  same  as  if  expressly  payable  on 
demand.     (8  J.  R.  189.     15  Wend.  308.) 

The  time  of  payment  in  a  note,  can  in  no  case  be  altered  by 
parol  evidence  ;  and  a  separate  written  agreement  not  to  demand 
payment  until  after  due,  is  not  a  part  of  the  contract,  although 
it  might  be  the  subject  of  a  cross-action,  if  violated.  (8  J.  R. 
189.     4  Mass.  R.  414.) 

Where  a  note  is  payable  so  many  months  after  a  certain 
time,  the  computation  must  in  all  cases  be  made  by  calendar, 
and  not  by  lunar  months,  unless  otherwise  expressed.  (1  R.  S. 
615,  sec.  4.)  A  lunar  month  consists  of  twenty-eight  days,  the 
supposed  revolution  of  the  moon,  thirteen  of  which  make  a 
year.  Calendar  months  are  of  unequal  lengths,  according  to 
the  Julian  division  in  our  common  almanacs,  whereof  in  a  year 
there  are  only  twelve.     (2  Blk.  Com.  141.) 

When  a  note  is  payable  at  a  certain  day  mentioned  in  the 
note,  it  is  not  pa^^able  at  the  time  the  words  import ;  but  the 
maker  has  three  additional  da3^s,  called  days  of  grace,  and  ex- 
clusive of  the  day  specified.  He  has  the  whole  of  the  third 
day  in  which  to  pay,  and  no  action  can  be  brought  against  him 
until  the  morning  of  the  next  day.     (8  Cow.  203.) 

The  person  who  promises  to  pay  is  called  the  maker ;  and 
the  person  to  whom  the  promise  is  made,  the  payee.  If  the 
note  be  negotiable,  and  be  negotiated  by  endorsement,  the  per- 
son who  endorses  the  note  is  called  the  endorser,  and  the  one 
to  whom  it  is  transferred,  the  endorsee,  or  holder. 

When  the  note  becomes  due,  the  maker  is  liable  to  the  payee, 
or  any  subsequent  holder  ;  and  this  ordinarily  without  present- 
ment or  demand,  even  though  it  be  payable  on  demand,  or  at  a 
particular  place,  if  payable  at  a  specified  time.  The  only  case 
in  which  a  demand  is  necessary  as  between  the  holder  and 
maker,  is  where  the  note  is  payable  at  sight,  or  at  a  specified 
time  after  sight.     (17  J.  R.  248.     8  Cow.  27] .) 

The  maker  may  defend  himself  on  the  ground,  that  the 
holder  is  a  mere  agent,  having  no  interest  in  the  note,  and  that 
the  defendant  has  notice  not  to  pay  him  ;  but  it  is  otherwise,  if 
the  plaintifl"  have  any,  the  least,  interest,  though  it  be  merely  a 
lien.     (6  Mass.  R.  430.) 

The  maker  is  liable  for  interest.  The  interest  is  to  be  com- 
puted from  the  day  the  note  is  due,  down  to  the  time  of  entering 
judgment.     If  the  note  is  payable  at  a  given  time  after  date, 


32  THE  FORM  AND  GENERAL 

'•'bearing  interest,"  interest  should  he  computed  from  the  date. 
And  a  note  payable  "  on  demand,  with  lawful  interest,"  carries 
interest  from  the  date.     (I  Cow.  Tr.  189,  190.) 

On  a  note  made  in  one  place,  payable  in  another,  interest  is 
recoverable  according  to  the  legal  rate  of  the  place  where  it  is 
payable  ;  which  must  be  proved  the  same  as  other  facts.     (Id.) 

The  engagement  of  the  endorser  of  a  promissory  note,  is  that 
the  note  shall  be  paid  on  its  being  duly  demanded  of  the  maker ; 
and  his  failing  to  make  payment  according  to  his  engagement. 
If  the  endorser  have  received  of  the  endorsee  less  than  the  face 
of  the  instrument,  the  former  is  liable  to  the  latter  only  for  the 
sum  received,  with  interest ;  but  the  maker  is  liable  for  the  full 
amount.     (13  Mass.  R.  731.) 

Demand  cannot  be  made  until  the  money  is  due  ;  and  it  must 
in  general  be  demanded,  in  order  to  charge  the  endorser  the 
very  day  it  falls  due.  (1  Cow.  162.)  When  a  note  is  payable 
so  long  after  sight,  or  after  demand,  or  after  a  certain  event,  the 
day  of  presenting  the  note  for  payment  is  to  be  excluded  in  the 
computation  of  time,  as  is  also  the  day  of  .the  date,  where  it  is 
payable  so  long  after  date.  Thus,  if  a  note  dated  the  first  day 
of  March,  be  payable  two  months  after  date,  it  becomes  due  the 
first  of  May  ;  then  add  the  three  days  of  grace,  and  it  carries 
you  to  the  fourth  of  May  before  a  demand  can  be  made  so  as 
to  charge  an  endorser.     (1  Cow.  159.) 

The  demand  should  be  made  of  the  maker  on  the  third  day 
of  grace  precisely  ;  in  order  to  charge  the  endorser,  the  demand 
should  be  made  of  the  maker  personally,  when  he  is  found, 
unless  the  note  be  payable  at  another  place ;  in  which  case,  the 
demand  must  be  made  there.  (16  East,  110.  Id.  112.)  If  the 
maker  should  be  gone  from  home,  it  should  be  presented  to  his 
agent ;  or  if  he  have  no  agent,  it  may  be  demanded  at  his 
house  or  place  of  business,  of  his  wife  or  servant ;  or  in  their 
absence,  of  some  other  person  belonging  to  the  family  ;  or  if  no 
person  be  at  home,  or  be  found,  or  if  the  maker  has  absconded, 
no  demand  is  necessary.     (1  Cow.  195,  and  cases  there  cited.) 

No  particular  form  of  words  is  necessary  in  presenting  the 
note  and  demanding  payment.  The  note  should  be  shown  to 
the  maker  or  other  proper  person,  and  some  Avords  made  use  of, 
amounting  to  a  request  to  pay.     (Id.  197.) 

If  the  third  day  of  grace  fall  on  Simddij,  or  on  ihc  fourth  of 
July — or  on  any  day  in   which  the  holder's  religion  forbids 


PRINCIPLES  OF  SUITS.  33 

secular  business  ;  or  a  day  of  public  rest ;  the  demand  should 
be  made  on  the  day  preceding  the  third  day  of  grace.  (2  Cai. 
343.  4  Wend.  566.)  And  the  notice  of  non-payment  may  be 
given  or  sent  to  the  endorser,  either  on  the  day  of  the  demand, 
or  on  Monday,  on  the  fifth  of  July,  or  on  the  day  succeeding 
the  day  of  public  rest,  &c.     (1  Cow.  Tr.  197.    2  Cai.  343.) 

If  a  bank  have  usages  and  by-laws,  respecting  demand  and 
notice,  those  who  deal  there  are  bound  by  them  ;  and  if  a  note 
be  made  for  negotiation  at  a  bank  whose  custom  it  is  to  demand 
payment,  and  to  give  notice  on  the  fourth  day,  that  custom 
forms  part  of  the  law  of  the  contract ;  and  the  parties  are  pre- 
sumed to  agree  to  be  governed  in  that  case  by  the  usage.  The 
same  rule  applies  when  a  bank,  by  usage,  treats  a  particular 
day  as  a  holy  day,  though  not  legally  known  as  such.  (1  Cow. 
197.    9  Mass.  R.  155.) 

If  the  note  is  payable  on  demand,  or  if  no  terms  are  men- 
tioned, no  days  of  grace  are  allowed  ;  (8  J.  R.  374 ;  13  Mass. 
R.  131 ;)  and  payment  should  be  demanded  within  a  reasonable 
time  after  the  note  was  issued,  or  was  received  by  the  holder. 
(2  Cai.  369.  6  Cow.  464.)  What  is  reasonable  time  must 
depend  upon  the  circumstances  of  the  particular  case.  It 
would  be  well  to  present  the  note  for  payment  on  the  day  of 
receiving  it,  if  possible ;  and  if  the  maker  reside  at  a  distance, 
it  should  be  transmitted  by  the  next  post. 

After  a  neglect  or  refusal  to  pay,  by  the  maker,  upon  a  de- 
mand, the  next  step,  in  order  to  hold  the  endorser,  is  to  give 
him  notice  of  such  demand  and  non-payment ;  and  where  a 
demand  on  the  maker  cannot  be  made,  notice  to  the  endorser  is 
equally  necessary. 

The  notice  need  not  state  that  the  maker  was  absent,  so  that 
no  personal  demand  could  be  made ;  any  act  equivalent  to  a 
demand  may  be  called  a  demand  in  this  notice.  (8  Mass.  R. 
260.) 

If  both  parties  live  in  the  same  town,  the  notice  should  be 
personal,  or  left  at  the  dwelling  house  or  place  of  business  of 
the  endorser  ;  and  it  should  be  given  on  the  day  of  demand,  or 
the  day  after,  at  farthest.  (2  Cai.  343.  1  John.  Cas.  328.)  If 
the  parties  do  not  live  in  the  same  town,  notice  should  be  sent 
by  the  next  regular  post  after  the  demand.  (20  J.  R.  372.  10 
id.  490.)   A  notice  by  mail  would  be  sufficient,  even  though  the 

3 


§4  THE  FORM  AND  GENERAL 

letter  miscarry,  or  the  endorser  be  absent,  and  so  cannot  receive 
It.     (6  Mass.  R.  316.    9  id.  159.) 

If  the  endorser  is  dead,  notice  should  be  given  to  his  executor 
or  administrator,  if  known  to  the  holder  ;  but  if  neither  the 
death,  nor  personal  representatives  be  known  to  him,  the  usual 
notice  is  sufficient.     (1  Cow.  206.     17  J.  R.  25.) 

The  holder  should  give  notice  to  all  such  parties  to  the  note, 
as  he  means  to  look  to  for  the  payment.  He  may,  in  this  way 
make  liable  any  greater  or  less  number  of  prior  endorsers, 
besides  the  maker.  They  are  all  individiially  liable  to  him  for 
the  amount.  They  are  so,  because  each  one  whose  name  ap- 
pears upon  the  note,  is  bound  by  a  separate  contract  for  the 
whole  amount ;  and  he  becomes  liable  immediately  on  default 
of  payment  by  the  maker,  and  due  notice  of  such  default. 

The  sudden  sickness  or  death  of  the  holder  or  his  agent,  will 
be  an  excuse  for  want  of  regular  notice  to  any  of  the  parties, 
provided  it  be  given  as  soon  as  possible  after  the  impediment  is 
removed  ;  and  so  will  the  absconding  or  absence  of  the  endorser, 
if  he  be  advised  of  notice  on  his  return  ;  or  if  the  holder  be 
ignorant  of  the  endorser's  place  of  residence,  it  is  sufficient  if 
he  use  reasonable  diligence  to  discover  where  he  may  be  found  ; 
and  what  is  reasonable  diligence  will  be  a  question  of  fact  for 
the  justice,  or  the  jury  under  his  direction.  (1  Cow.  206.)  The 
holder  may,  if  he  choose,  charge  by  notice  his  immediate  or 
any  other  endorser,  and  neglect  to  give  notice  to  all  others  whose 
names  appear  on  the  note.  Upon  one  endorser  thus  receiving 
notice,  he  must  notify  such  party  or  parties  as  he  intends  to 
charge,  who  may  in  like  manner  notify  the  endorser  who  stands 
behind  him  in  the  instrument. 

A  notice  from  any  person  who  has  a  right  of  action  on  the 
note,  will  be  a  sufficient  notice  for  all  the  antecedent  parties 
between  the  party  giving  and  the  party  receiving  notice,  and 
render  a  further  notice  from  any  of  those  intermediate  parties 
unnecessary.     (Chitty  on  Bills,  527,  8.) 

When  satisfaction  is  made  by  a  previous  party  to  a  subse- 
(juont  one,  ihc  instrument  liccomes  his  own,  and  he  holds  it  in 
his  oriL^inal  napacAiy  ;  the  same  as  though  he  had  never  parted 
with  it. 

The  holder  is  entitled  to  payment  of  the  note,  and  so  long  as 
he  docs  no  act  to  impair  tlni  right,  he  may  enforce  sucli  pay- 
ment from  any  or  all  the  parties  liable.     As  the  endorsers  are 


PRINCIPLES  OF  SUITS.  35 

in  the  nature  of  sureties  for  the  maker's  fulfilling  his  promise, 
and  have  a  right  to  look  to  him  for  indemnity,  if  the  holder  do 
any  act,  the  effect  of  which  is  to  impair  their  right,  he  cannot 
afterwards  resort  to  them.  If,  therefore,  the  holder  give  time  to 
the  maker  or  take  from  him  any  new  security  payable  at  a  fu- 
ture day,  without  the  assent  of  the  other  parties  to  the  note, 
they  are  discharged.     (1  Cow.  212,  213.) 

There  are  but  few  cases  in  which  a  bill  or  note  is  void  in  the 
hands  of  an  innocent  endorsee,  for  a  valuable  consideration. 
But  as  between  original  parties  to  negotiable  paper,  these  pro- 
visions in  favor  of  the  bona  fide  assignee,  do  not  apply,  and  the 
consideration  of  a  note  may  be  inquired  into.  It  may  be  in- 
quired into  between  the  maker  and  payee,  and  between  the 
endorser  and  endorsee.  The  rule  equally  applies  when  the 
endorsee  took  the  paper  with  notice  of  an  illegal,  or  want  of 
any  consideration,  or  of  any  circumstances  which  would  have 
avoided  the  note  in  the  hands  of  the  endorser,  or  when  taken 
not  in  the  ordinary  course  of  business,  or  after  it  was  due,  or 
under  circumstances  which  ought  to  have  led  to  an  inquiry. 

If  John  Doe,  the  maker  of  a  note,  is  sued  by  Richard  Roe, 
the  payee.  Doe  might  show  in  his  defence,  either  that  he  owed 
Roe  nothing,  and  had  received  nothing  from  him  as  a  conside- 
ration for  making  the  note,  and  therefore  was  not  bound  to  pay 
it ;  or  that  he  made  the  note  for  some  purpose  which  is  illegal ; 
or  that  the  consideration  of  the  note  had  failed  altogether  ;  or 
had  partially  failed ;  and  so  reduce  the  recovery.  So,  if  Henry 
Brown,  the  endorsee,  should  sue  Richard  Roe,  the  endorser,  the 
same  defence  would  apply  between  the  endorser  and  endorsee 
of  the  note.  Between  these  parties  there  is  a  privity  of  con- 
tract, and  they  know,  or  are  presumed  to  know,  whether  the 
note  or  endorsement  is  fair  and  honest,  and  founded  upon  good 
consideration.  But  a  different  rule  prevails  with  regard  to  the 
other  parties  to  these  instruments,  for  often  they  are  perfect 
strangers  to  the  transactions  out  of  which  the  note  or  endorse- 
ment, upon  which  they  claim,  arose.  They  are  hence  called 
innocent  or  bona  fide  holders ;  and  the  law  will  sustain  their 
claims,  however  viciously  other  parties  may  have  acted,  or 
whatever  objections  of  consideration  may  arise.  (Chitty  on 
Bills,  85.    7  J.  R.  361.     1  Conn.  Rep.  387.) 

Negotiable  paper  can  be  transferred  by  an  agent  so  as  to  bind 
the  true  owner,  in  favor  of  the  holder,  if  it  was  taken  by  him  in 


36  THE  FORM  AND  GENERAL 

the  usual  course  of  trade,  and  for  a  fair  and  valuable  conside- 
ration, without  notice  of  the  fraud.  But  if  the  paper  be  not  so 
taken,  the  rights  of  ihe  true  owner  will  not  be  barred. 

Endorsements  are  either  i7i  blank,  in  full,  or  restrictive. 

The  endorsement  in  blank,  is  by  merely  writing  the  endor- 
ser's name  on  the  back  of  the  bill  or  note,  without  mentioning 
the  person  in  whose  favor  the  endorsement  is  made,  and  such 
endorsement  in  itself  constitutes  a  complete  and  perfect  transfer 
of  the  interest  in  the  bill  or  note.  A  blank  endorsement  can  be 
converted  into  a  special  one,  by  the  holder  inserting  above  it, 
•'  pay  the  contents  to  A.  B.,"  which  the  law  authorizes  him  to 
do.  (1  Cow.  171.  Chitty  on  Bills,  252  to  259.)  Such  holder 
by  writing  these  words  and  transferring  the  note  to  the  party 
named  in  the  endorsement,  without  writing  his  own  name  as 
endorser  will  not  be  liable  on  the  bill  or  note.     (Id.) 

A  blank  endorsement  makes  the  note  transferable  by  mere 
delivery,  the  same  as  if  it  had  been  payable  to  bearer ;  and 
where  a  note  was  endorsed  in  blank,  and  two  plaintiffs  sued 
upon  it  as  endorsees  jointly ;  it  was  held  that  they  were  not 
obliged  to  prove  either  that  they  received  the  note  so  endorsed 
as  partners,  or  that  it  was  endorsed  to  them  jointly.  (Chitty 
on  Bills,  255.) 

The  holder  of  a  note  endorsed  in  blank,  may  fill  it  up  before 
or  at  the  trial,  with  what  name  he  pleases.  It  is  often  advisable 
for  the  endorsee  to  fill  it  up,  so  as  to  make  it  an  endorsement  in 
full,  in  order  to  avoid  the  risk  in  case  it  is  lost,  of  its  getting 
into  the  hands  of  a  bona  fide  holder,  or  of  its  being  fraudulently 
pledged  or  disposed  of. 

An  endorsement  in  full,  is  where  the  endorser  fills  up  the 
blank  endorsement  himself,  by  expressing  in  whose  favor  he 
makes  the  endorsement,  as,  "  pay  the  contents  to  A.  B."  or 
■'pay  the  contents  to  A.  B.  or  order ^''  or  to  that  effect. 

An  endorsement  in  blank  may,  or  may  not,  be  filled  up  at  the 
election  of  the  endorsee.  But  an  endorsement  in  full  transfers 
the  interest  of  the  payee,  to  the  person  named  in  the  endorse- 
ment ;  and  nothing  but  cancelling  the  endorsement,  or  the  en- 
dorsee's endorsing  it  again,  would  oust  him  of  tlic  legal  title. 
(15  J.  R.  340.) 

A  n'strictive  endorsement  restricts  the  payment  of  the  note  to 
the  endorser  only;  as.  by  saying  "pay  the  contents  to  A.  only^^ 


PRINCIPLES  OF  SUITS.  37 

or  "  to  A.  for  riiy  use  ;"  and  the  endorsee  cannot  in  such  a  case 
negotiate  the  instrument  any  farther.     (Ch.  on  Bills,  258  to  261.) 

The  note  may  be  endorsed  so  as  to  exempt  the  endorser  from 
liability ;  as  if  the  endorser  should  add,  at  his  oivii  risk,  or 
without  recourse.  In  that  case,  the  maker,  prior  endorsers  and 
subsequent  endorsers  would  be  holden  ;  but  the  immediate  en- 
dorser Avould  be  exempted  from  responsibility  by  the  special 
contract.  (3  Kent,  93.)  This  is  the  proper  mode  of  endorsing 
a  note  by  an  agent  in  behalf  of  his  principal,  where  it  is  not 
intended  that  he  shall  be  personally  liable. 

If  a  blank  note  or  check  be  endorsed,  it  will  bind  the  en- 
dorser to  any  sum  or  time  of  payment,  which  the  person  to 
whom  he  intrusts  the  paper,  chooses  to  insert  in  it.  This,  how- 
ever, only  applies  to  the  case  in  which  the  body  of  the  instru- 
ment is  left  blank.  If  negotiable  paper,  regularly  filled  up,  be 
endorsed  in  blank,  the  endorser  is  holden  only  in  the  character 
of  endorser,  and  according  to  the  terms  and  legal  operation  of 
the  instrument.     (3  Kent,  90.) 

Possession  is  priina  facie  evidence  of  property  in  negotiable 
paper,  payable  to  bearer,  or  endorsed  in  blank ;  and  the  bearer, 
though  a  mere  agent  when  the  endorsement  is  in  blank,  ma}^ 
sue  on  it,  in  his  own  name,  without  showing  title,  unless  cir- 
cumstances appear  creating  suspicion.  (3  Kent,  78.  7  Cow. 
174.)  The  bona  fide  holder  can  recover  upon  the  paper,  though 
it  came  to  him  from  a  person  who  had  stolen  or  robbed  it  from 
the  true  owner,  provided  he  took  it  innocently,  in  the  course  of 
trade,  for  a  valuable  consideration  and  not  overdue,  and  under 
circumstances  of  due  caution ;  and  he  need  not  account  for  his 
possession  of  it,  unless  suspicion  be  raised.  Suspicion  must  be 
cast  upon  the  title  of  the  holder,  by  showing  that  the  instru- 
ment had  got  into  circulation  by  force  or  fraud,  before  the  bur- 
then is  cast  upon  the  holder  of  showing  the  consideration  he 
gave  for  it.     (Id.  79.) 

Where  there  are  several  endorsers  it  is  not  necessary  that  the 
action  should  be  brought  in  favor  of  the  actual  holder,  or  of  the 
last  endorser.  Any  one  endorser  may  sue  the  maker,  instead 
of  a  preceding  endorser,  striking  out,  before  the  trial,  all  the 
names  below  his  own  ;  and  a  similar  proceeding  may  bc'  had 
against  a  prior  endorser.  But  the  prior  endorsers,  if  they  wish 
to  commence  an  action  on  the  note,  must  get  rid  of  the  subse- 
quent endorsements.     Actions  may  thus  follow  successively  by 


38  THE  FORM  AND  GENERAL 

the  holder  against  his  immediate  endorser  ;  by  the  latter  against 
his  endorser,  and  so  on  up  to  the  payee,  who  last  of  all  may 
sue  the  maker. 

In  any  suit  founded  upon  any  negotiable  promissory  note  or 
bill  of  exchange,  or  in  which  such  note,  if  produced,  might  be 
allowed  as  a  set-ofF  in  the  defence  of  any  suit ;  if  it  appear  on 
the  trial  that  such  note  or  bill  was  lost,  while  it  belonged  to  the 
party  claiming  the  amount  due  thereon,  parol  or  other  evidence 
of  the  contents  thereof  may  be  given  on  such  trial,  and  not- 
withstanding such  note  or  bill  was  negotiable,  such  party  shall 
be  entitled  to  recover  the  amount  due  thereon,  the  same  as  if 
such  note  or  bill  had  been  produced.  (2  R.  S.  503,  sec.  94.) 
But  to  entitle  a  party  to  such  recovery,  he  shall  execute  a  bond 
to  the  adverse  party,  in  a  penalty  at  least  double  the  amount  of 
such  note  or  bill,  with  two  sureties,  to  be  approved  by  the  court 
in  which  the  trial  shall  be  had,  conditioned  to  idemnify  the  ad- 
verse party,  his  heirs  and  personal  representatives,  against  all 
claims  by  any  other  persons  on  account  of  such  note  or  bill,  and 
against  all  costs  and  expenses  by  reason  of  such  claim.  (Id. 
504,  sec.  95.) 

FORM  OF  BOND  TO  INDEMNIFY  AGAINST  A  LOST  NOTE. 

Know  all  men,  by  these  presents,  that  we,  John  Doe,  Rich- 
ard Roe  and  Henry  Brown,  are  held  and  firmly  bound  unto 
John  Stiles  in  the  sum  of  [here  msert  double  the  amount  claimed 
in  the  note,]  to  be  paid  to  the  said  John  Stiles,  or  to  his  certain 
attorney,  executors,  administrators  or  assigns ;  to  which  pay- 
ment well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs, 
executors  and  administrators,  jointly  and  severally,  firmly  by 
these  presents.  Sealed  with  our  seals  and  dated  the  first  day 
of  June,  1849. 

Tlic  condition  of  this  obligation  is  such,  that  if  the  said  John 
Doe  shall  indemnify  the  said  Jolni  Stiles,  his  heirs  and  personal 
representatives,  against  all  claims  by  any  note  executed  by  the 
said  Jolm  Stilos  to  the  said  John  Doc,  for  the  sum  of  [hej'e  state 
the  (unount,\  dated  [here  slate  the  date,]  payable  [here  state  the 
time;]  and  against  all  costs  and  expenses  by  reason  of  any  such 
claim,  then  this  obligation  to  be  void  ;  otliorwise  of  force. 

John  Doe,  [l.  s.] 

Richard  Roe,    [l.  s.] 
Henry  Brown,  [l.  s.J 


PRINCIPLES  OF  SUITS.  39 

Sealed  and  delivered  in  presence  of 

David  Long,  Justice. 
Upon  the  foregoing  bond,  the  justice  should  endorse  his  ap- 
proval thus  : 

"  I  approve  of  Richard  Roe  and  Henry  Brown,  as  sureties  in 
the  within  bond,  June  1st,  1849. 

"  David  Long,  Justice." 

It  will  be  seen  that  the  enactment  applies  only  to  negotiable 
paper.  It  must  appear  affirmatively  that  the  note  or  bill  was 
negotiable,  or  the  plaintiff  will  be  entitled  to  recover  without 
tendering  an  indemnity.  (3  Wend.  344.  12  id.  173.)  The 
court  will  not  presume  a  lost  note  to  be  negotiable.  The  bur- 
then of  proof  lies  upon  the  defendant  to  show  that  the  instru- 
ment was  negotiable.     (10  J.  R.  104.     3  Wend.  34,  44.) 

Matters  of  Account. 

Matters  of  account  are  such  demands  as  arise  in  the  various 
dealings  among  men,  not  from  the  positive  direction  of  any 
statute,  but  from  natural  reason,  and  the  just  construction  of 
law.  They  extend  to  all  presumptive  undertakings  which, 
though  never  perhaps  actually  made,  yet  constantly  arise  from 
the  general  intendment  that  every  man  has  engaged  to  perform 
what  duty  or  justice  requires.  (3  Blk.  Com.  161.)  These  de- 
mands arise  in  a  great  variety  of  cases,  among  which  are  the 
following  : 

For  money  paid  by  one  person,  for  the  benefit  of  another,  at 
the  request  of  the  latter.  To  maintain  an  action  for  money 
paid,  it  must  appear  that  money,  or  something  equivalent,  has 
been  actually  advanced.  But  property  received  as  money  will 
support  an  action  for  money  paid.  (8  J.  R.  202.  6  Cow,  662. 
10  Wend.  498.)  It  must  further  appear,  either  by  express  proof 
or  by  implication  from  the  nature  of  the  transaction,  that  the 
money  was  paid  by  request  of  the  defendant.  (3  Cow.  587.) 
For  if  one  of  his  own  accord  and  without  any  legal  obligation, 
pay  money  for  another,  no  action  will  lie  to  recover  it  back. 
Thus,  if  without  any  request,  an  officer  pay  an  execution,  or  a 
collector  pay  a  tax,  the  payment  will  create  no  right  of  action 
against  the  defendant  or  person  taxed.  (8  J.  R.  436.  10  id.  36] . 
41  id.  87.) 

If,  however,  the  money  be  paid  by  a  person  in  consequence  of 


40  THE  FORM  AND  GENERAL 

a  legal  liability  to  which  he  is  subject,  but  from  which  a  third  per- 
son ought  to  have  relieved  him,  by  himself  paying  the  amount, 
a  request  will  be  implied.  (1  Chitty  PI.  384.)  If,  therefore,  a 
carrier,  by  mistake,  deliver  to  B.  goods  consigned  and  sold  toC, 
and  B.  appropriate  the  goods,  and  the  carrier  on  demand,  with- 
out action  pays  C.  their  value,  the  carrier  may  recover  it  against 
B.  as  money  paid  to  his  use.  (4  Taunt.  189.)  And  where  cer- 
tain persons  subscribed  money  for  the  purpose  of  establishing 
and  running  a  stage-coach,  and  the  subscribers  chose  an  agent 
to  put  the  scheme  into  operation,  who  advanced  his  own  money, 
it  was  held  that  he  might  maintain  an  action  against  a  subscri- 
ber to  recover  the  amount  of  his  subscription.     (5  Pick.  R,.  228.) 

For  money  had  and  received  by  the  defendant^  which  in  equity 
and  good  conscience  ought  to  be  paid  to  the  j)laintiff.  To  main- 
tain the  suit,  it  must  appear  that  the  defendant  himself  or  his 
agent,  has  received  money,  or  its  equivalent.  Positive  proof 
need  not,  however,  be  given ;  for  if  it  may  be  fairly  presumed 
from  the  facts  proved,  that  the  defendant  has  received  the  plain- 
tiff's money,  it  will  be  sufficient.  (IIJ.  R.  464.  7  id.  132.  10 
Wend.  436.) 

Where  goods  in  the  hands  of  the  defendant  are  saleable  ;  after 
a  lapse  of  time,  it  may  be  presumed  against  him  that  he  has  sold 
the  property  and  received  the  money,  if  there  be  reasonable  evi- 
dence that  the  defendant  has  converted  the  same  into  money. 
(1  Chitty  PI.  348.) 

An  action  will  lie  to  recover  back  money  paid  by  mistake  or 
money  paid  on  a  contract  which  has  been  rescinded.  (18  J.  R. 
488.  5  id.  85.)  It  is  settled  as  a  general  principle,  that  where 
a  man  pays  money,  without  any  legal  obligation  to  do  so,  under 
a  mistake  of  facts  and  without  the  means  of  ascertaining  the 
truth  ;  or  if  he  be  induced  to  pay  it  under  false  representations, 
he  may  recover  it  back.  (2  Hall's  Ct.  R.  252.)  But  the  mistake 
must  be  of  facts.  When  there  is  no  fraud  or  mistake  in  relation 
to  the  matter  of  fact,  but  the  law  is  mistaken,  the  rule  applies  ; 
ignorance  of  law  does  not  excuse. 

An  action  will  also  lie  to  recover  back  money  paid,  where  the 
consideration  of  tiie  payment  has  failed.  As  where  payment  is 
made  in  advance  for  services,  and  the  services  are  not  rendered  ; 
or  money  is  paid  in  advance  for  goods,  and  the  defendant  refuses 
to  deliver  the  goods. 

An  action  lies  for  money  got  by  imposition,  express  or  implied, 


PRINCIPLES  OF  SUITS.  41 

or  by  extortion,  oppression,  or  undue  advantage  taken  of  the 
plaintiff's  situation.  In  a  word,  an  action  may  be  maintained 
in  all  cases  where  the  defendant,  under  the  circumstances  of 
the  case,  is  obliged,  by  the  ties  of  natural  justice  and  equity,  to 
refund  the  money  he  wrongfully  withholds.  (J  2  J.  R.  274.  4 
id.  255.) 

When  the  money  has  been  paid  upon  an  illegal  contract,  and 
both  parties  are  equally  in  fault,  the  money  cannet  be  recovered. 
Where  therefore,  a  contract  is  made  the  object  of  which  is  to 
violate  the  statute,  and  one  of  the  parties  pays  money  to  the 
other  in  furtherance  of  the  contract,  and  the  contract  is  in  part 
executed,  having  however  a  portion  of  the  money  which  has 
been  advanced,  unexpended,  an  action  will  not  lie  to  get  back 
the'unexpended  balance.     (15  Wend.  412.) 

To  maintain  the  action  for  money  had  and  received,  either 
the  money  or  the  goods  for  which  the  plaintiff  claims  the  pro- 
ceeds, must  originally,  or  at  the  time  of  the  action  brought,  have 
belonged  to  the  plaintiff.     (1  Chitty  PI.  386.) 

For  goods  sold  and  delivered.  If  I  purchase  goods  of  a 
person,  an  action  will  lie  against  me  for  the  price  agreed  ;  and 
if  no  price  be  agreed  upon  between  us,  the  law  will  imply  my 
obligation  and  ability  to  pay  for  them  what  they  are  worth. 
(18  J.  R.  451.)  To  support  the  action,  there  must  have  been 
an  actual  delivery  of  the  goods,  or  something  equivalent  to  it. 
The  plaintiff  should  prove  on  the  trial,  1.  The  sale ;  2.  The 
delivery  of  the  goods  ;  and  3.  Their  value. 

For  loork  and  labor.  If  one  person  perform  services  for 
another,  at  the  request  of  the  latter,  an  action  will  lie  to  recover 
the  compensation  agreed  upon  ;  or,  if  there  be  no  specific  agree- 
ment as  to  the  compensation,  the  reasonable  worth  of  the  ser- 
vices may  be  recovered ;  and  the  plaintiff  will  be  permitted  to 
show  on  the  trial,  1.  That  he  performed  the  services ;  and  2. 
What  those  services  were  worth.  A  request  to  perform  the 
services  must  be  either  expressly  proved,  or  reasonably  im- 
plied, from  the  situation  of  the  parties,  or  the  circumstances 
of  the  case.  Thus,  where  medical  assistance  was  rendered 
to  a  servant,  without  the  master's  request,  the  master  was 
held  not  liable.  (12  J.  R,  249.)  And  where  a  physician 
furnished  medicines   to  a  pauper,  it  was  held  that  he  could 

For  the  purpose  of  calculating  interest,  a  month  shall  be  con- 


^  THE  FORM  AND  GENERAL. 

not  recover  therefor  from  the  overseers  of  the  poor,  without 
showing  their  request.  (12  J,  R.  352.)  But  it  seems  if  the 
medical  assistance  were  rendered  in  a  case  of  such  extremity  as 
not  to  warrant  the  delay  of  application  to  the  master,  the  master 
would  be  liable. 

When  labor  and  services  are  performed  for  a  person  with  his 
knowledge  and  assent,  there  is  a  strong  presumption  that  they 
are  performed  at  his  request.  If  a  laborer  hire  himself  to  work 
a  stated  length  of  time,  and  without  the  consent  of  his  employer 
leave  his  service  before  the  expiration  of  the  time  agreed,  he 
cannot  recover  for  the  labor  performed.  (12  J.  R.  165.  8  Cow. 
63.)  In  such  cases,  the  contract  is  considered  entire,  and 
nothing  short  of  full  performance  will  enable  a  party  to  sustain 
an  action  upon  it.  But  if  after  part  of  the  time  has  elapsed,  the 
employer  give  the  laborer  his  note  for  the  services  already  ren- 
dered, this  is  so  far  a  change  of  the  contract,  that  the  note  may 
be  recovered,  although  the  laborer  quit  his  service  in  violation 
of  the  contract.     (13  J.  R.  53.     4  Cow.  564.) 

An  infant  may  sue  and  recover  for  a  part  performance  of 
an  entire  contract ;  for  though  he  is  not  bound  to  fulfil  the  con- 
tract on  his  part,  the  very  circumstance  of  its  being  void  leaves 
it  for  the  law  to  imply  a  promise  of  compensation  for  the  work 
which  he  has  actually  done.     (2  Pick.  R.  332.) 

If  a  servant  misconduct  himself,  he  may  be  discharged  with- 
out previous  notice,  and  before  his  time  expires.  And  in  such 
case,  he  is  not  entitled  to  wages  even  for  the  time  during  which 
he  has  served. 

If,  however,  an  employer  discharge  his  servant  without  good 
cause,  or  abuse  him  in  such  a  manner  as  to  render  it  unsafe  or 
improper  to  live  with  him  any  longer,  he  is  permitted  to  recover 
for  his  services,  or  he  may  recover  damages  for  the  breach  of 
the  agreement  on  the  part  of  the  employer,  the  law  having 
bound  him  on  his  part,  1.  To  give  the  laborer  employ  during 
the  time  he  so  hired  to  him ;  and  2.  To  use  him  in  a  proper 
and  becoming  manner  during  that  time. 

As  to  what  conduct  of  the  master  will  justify  the  servant's 
leaving  before  the  expiration  of  his  term  of  hire,  it  has  been 
decided  that  where  a  servant  hires  himself  for  a  fortnight,  and 
leaves  the  service  of  his  employer  at  the  end  of  ten  days,  in 
consequence  of  harsh  language  from  him,  he  is  not  entitled  to 
any  wages  for  the   ten  days.     (1  Wend.  514.)     And  the  de- 


PRINCIPLES  OF  SUITS.  43 

cision  in  that  case  seems  to  be  put  upon  the  ground,  that, 
ahhough  the  employer's  language  was  extremely  improper,  yet 
that  in  point  of  fact,  he  did  not  turn  the  servant  away  ;  and  in 
no  case,  it  is  presumed,  would  a  servant  be  justified  in  quitting 
the  service  of  his  employer  for  maltreatment,  unless  the  master's 
conduct  be  such  as  to  amount  to  a  rescision  of  the  contract  on 
his  part,  or,  in  other  words,  unless  the  maltreatment  complained 
of  shows  a  willingness  of  the  master  to  be  rid  of  the  servant. 
(7  Cow.  112.) 

For  use  and  occupation.  Any  landlord  may  recover,  in  an 
action,  a  reasonable  satisfaction  for  the  use  and  occupation  of 
any  lands  or  tenements  by  any  person,  under  any  agreement, 
not  made  by  deed  ;  (that  is,  not  under  seal ;)  and  if  any  parol, 
demise,  or  other  agreement,  not  being  by  deed,  by  which  a 
certain  rent  is  reserved,  shall  appear  in  evidence  on  the  trial  of 
any  such  action,  the  plaintiff  shall  not,  on  that  account,  be  de- 
barred from  a  recovery  ;  but  may  make  use  thereof,  as  evidence 
of  the  amount  of  damages  to  be  recovered.  (1  R.  S.  739, 
sec.  26.) 

The  statute  provides  for  the  recovery  of  such  a  compensation 
as  the  law  considers  reasonable,  for  the  use  and  occupation  of 
premises,  when  the  tenant  occupies  them  by  permission  of  the 
plaintiff,  whether  there  be,  or  be  not,  an  agreement  as  to  the 
amount  of  rent.  The  action  is  founded  upon  contract,  express 
or  implied,  between  parties  standing  in  the  relation  of  landlord 
and  tenant.  (13  J.  R.  240.)  Where  the  plaintiff  let  certain 
premises  by  verbal  agreement  for  one  year,  to  the  defendant ; 
and  without  any  express  new  agreement,  the  defendant  occu- 
pied the  premises  for  three  years,  it  was  adjudged  that  the 
holding  was  by  implied  agreement,  and  that  the  plaintiff  might 
recover  for  the  three  year's  use  and  occupation.     (15  J.  R,  505.) 

If  part  of  an  entire  agreement  be  illegal  and  void,  the  whole 
is  void.     (8  J.  R.  253.) 

Interest  on  Money  and  Accounts. 

The  rate  of  interest  upon  the  loan  or  forbearance  of  any 
money,  goods,  or  things  in  action,  shall  continue  to  be  seven 
dollars  upon  one  hundred  dollars  for  one  year ;  and  after  that  rate, 
for  a  greater  or  less  sum,  or  for  a  longer  or  shorter  time.  (2  R. 
S.  56,  sec.  1.) 


44  THE  FORM  AND  GENERAL 

sidered  the  twelfth  part  of  a  year,  and  as  consisting  of  thirty 
days  ;  and  interest  for  any  number  of  days  less  than  a  month, 
shall  be  estimated  by  the  proportion  which  such  number  of 
days  will  bear  to  thirty.     (Id.  sec.  18.) 

The  parties  may  stipulate  for  any  lower  rate  of  interest  than 
the  legal  rate.  Where  no  rate  of  interest  is  fixed  by  the  con- 
tract, the  creditor  may  demand  the  rate  fixed  by  law.  Interest 
should  be  calculated  according  to  the  law  of  the  place  where 
the  contract  is  to  be  performed.     (2  J.  R.  235.) 

It  is  a  general  rule  that  all  contracts,  express  or  implied,  for 
the  payment  of  money,  draw  interest  from  the  time  of  the 
money  falling  due.  (7  Wend.  109.)  If,  howeverj  interest  is 
not  agreed  to  be  paid  by  the  terms  of  the  contract,  if  the  credi- 
itor  receives  the  principal,  he  cannot  afterwards  sue  for  the  in- 
terest. Otherwise,  where  interest  is  stipulated  for  in  the  con- 
tract.    (15  Wend.  76.) 

Interest  is  not  recoverable  on  uncertain  demands,  unless 
there  be  an  agreement,  express  or  implied,  to  allow  interest. 
(4  Cow.  496.)  Nor  on  open,  running,  or  unliquidated  accounts, 
unless  there  be  some  usage  of  trade,  or  other  circumstance  for 
which  an  agreement  to  allow  interest  may  be  inferred.  (3 
Cai.  226.    2  Wend.  413.) 

2.   On  an  Injury  to  the  Person^  or  to  Real  Property •>  or  for 
Taking,  Detaining,  or  Injuring  Personal  Property. 

Every  injury  to  the  person,  j^ersonal  property,  or  lands,  of 
any  person  committed  by  another,  may  be  the  subject  of  an 
action.     (1  Selw.  453.) 

The  injury  may  be  occasioned  by  the  act  of  the  defendant  at 
the  time,  or  the  injury  may  not  be  direct  and  immediate  on  the 
act  done,  but  consequential  only.     (Id.) 

The  law  denominates  a  direct  injury  to  the  person  "  assault 
and  ba(tc7y,"  of  which  Justices  of  the  Peace  have  not  juris- 
diction ;  (Code,  sec.  54  ;)  so  that  actions  can  be  brought  before 
Justices  for  no  other  direct  injuries  than  such  as  are  committed 
upon  cithor  the  personal  or  real  property  of  the  plaintifl". 

Direct  Injury  to  Personal  Property. 
A  direct  injury  to  personal  property  may  be  committed  either 


PRINCIPLES  OF  SUITS.  45 

hy  dcpriviiig  the  oioner  of  possession^  or  hy  iiijuring  the  pro- 
perty in  the  hands  of  the  owner. 

To  maintain  an  action  for  such  injury,  the  plaintiff  must 
have  actual  or  constructive  possession,  at  the  time  of  the  alleged 
injury.  (8  J.  R.  435.)  By  constructive  possession,  is  meant  a 
right  to  immediate  possession,  as  if  goods  are  in  the  possession 
of  a  man's  servant,  or  agent,  the  possession  of  the  servant  or 
agent  being  the  possession  of  the  owner.  (11  J.  R.  285.)  Bare 
possession,  though  illegal,  is  a  sufficient  title  to  support  an 
action  against  any  person  other  than  the  true  owner.  (3  J.  R. 
141.    7  Cow.  752.) 

A  master  has  no  right  to  command  his  servant  to  destroy  or 
injure  property :  if  he  do,  and  the  servant  obey,  both  the  master 
and  servant  will  be  liable.  (14  J.  R.  119.)  In  some  instances, 
an  action  may  be  supported  for  a  wrongful  act  or  injury  to  per- 
sonal property,  whilst  in  the  lawful  possession  of  the  wrong 
doer — as  where  he  has  been  guilty  of  an  abuse — which  renders 
him  culpable  from  the  beginning.  If,  therefore,  a  person  take 
possession  of  goods  and  chattels,  in  pursuance  of  an  authority 
or  license  given  hy  law,  and  abuse  such  goods  and  chattels,  he 
is  liable ;  as  if  a  person  seize  cattle  doing  damage  on  his  lands, 
and  work  the  cattle,  or  impound  them,  before  he  has  the  dam- 
ages appraised.     (11  J.  R.  253.     13  id.  414.) 

When  an  immediate  act  is  done  by  the  co-operation  or  joint 
act  of  several  persons,  they  are  all  liable,  and  may  be  sued 
jointly  or  severally ;  and  any  one  is  lialMe  for  the  injury  done 
by  all.  (8  Cow.  111.)  But  when  joint  wrong  doers  are  sued 
separately,  and  separate  judgments  obtained,  the  plaintiff  can 
have  but  one  satisfaction  for  his  damages,  and  he  may  elect  the 
highest  sum  recovered.  He  is  entitled,  however,  to  his  costs  in 
each  suit. 


Direct  Injury  to  Real  Property. 

Actual  and  exclusive  possession  without  a  legal  title  is  suffi- 
cient against  a  wrong  doer,  or  a  person  who  cannot  show  any 
right  or  authority  from  the  real  owner.  (11  East,  65.  7  Cow. 
752.)  Where  a  person  contracted  with  the  owner  of  a  lot  for 
the  purchase  of  a  growing  crop  of  grass,  it  was  decided  that 
the  purchaser  had  such  an  exclusive  possession  of  the  lot, 
though  for  a  limited  purpose,  that  he  might  maintain  an  action 


46  THE  FORM  AND  GENERAL 

against  any  person  entering  the  lot  and  taking  the  grass  even 
with  the  assent  of  tlie  owner.  (1  Chitty  PI.  200.  6  East, 
602.) 

If  a  man,  without  permission,  enter  on  the  land  of  another  to 
take  away  his  own  property,  he  will  render  himself  liable  to  an 
action.  (6  J.  R.  5.  14  id.  406.)  So  also  if  he  enter  a  private 
dwelling  house  without  license.  (12  J.  R.  408.)  This  license, 
however,  need  not  always  be  express,  but  may  be  implied,  as  by 
familiar  intimacy.  If  a  person  enter  by  express  permission,  and 
is  then  guilty  of  rude  conduct  to  the  family,  or  refuse  to  with- 
draw when  requested,  an  action  will  lie,  the  law  regarding  the 
original  entry  in  such  case  as  unlawful. 

An  action  may  be  supported  for  an  injury  to  land,  though  not 
fenced.  It  will  lie,  however  unintentional  the  injury,  if  the  en- 
try were  not  for  a  justifiable  purpose.     (5  Bac.  Ab.  Tit.  Tres.) 

In  actions  for  damages  done  by  beasts,  the  question  used  to 
be  raised  as  to  the  sufficiency  of  fences.  The  Supreme  Court 
at  length  decided  that  it  was  a  good  defence  that  the  defend- 
ant's beasts,  which  did  the  damage,  entered  the  plaintiff's  land 
by  reason  of  a  defect  in  the  partition  fence,  which  the  plaintiff 
was  hound  to  keep  in  repair  ;  but  that  if  defendant's  beasts  en- 
tered otherwise  than  through  that  part  of  the  partition  fence 
which  the  plaintiff  was  bound  to  repair  ;  or  if  they  did  damage 
on  the  unenclosed  lands  of  the  plaintiff,  the  defendant  would  be 
liable  for  such  damage  ;  that  it  was,  however,  a  good  defence  to 
an  action  for  damages  done  by  cattle  on  unenclosed  land,  that 
there  was  a  town  regulation  permitting  the  cattle  to  go  at  large. 
(12  J.  R.  433.     1  Cow.  79.     19  J.  R.  385.) 

Towns  are  now  expressly  empowered  to  make  rules  and  re- 
gulations for  ascertaining  the  sufficiency  of  fences  therein,  and 
for  directing  the  times  and  manner  in  which  cattle  should  be 
permitted  to  go  at  large  on  highways. 

When  the  electors  of  any  town  shall  have  made  any  rate  or 
regulation  prescribing  what  shall  be  deemed  a  sufficient  fence  in 
such  town,  any  person  who  sliall  thereafter  neglect  to  keep  a 
fence  according  to  such  rule  or  regulation,  shall  be  precluded 
from  recovering  compensation,  in  any  manner,  for  damages  done 
by  any  beast,  lawfully  going  at  large  on  the  highways,  that  may 
enter  on  any  lands  of  such  person  not  fenced  in  conformity  to 
the  said  rule  or  regulation,  or  for  entering  througli  any  defective 
fence.     (1  R.  S.  347,  sec.  44.) 


PRINCIPLES  OF  SUITS.  47 

One  of  two  or  more  defendants,  sued  jointly  for  the  same 
wrong,  though  he  suffer  judgment  to  pass  against  him  by  de- 
fault, cannot  be  a  witness  for  his  co-defendants.  If,  however, 
he  plead,  and  is  discharged,  there  being  no  evidence  against  him, 
he  may  be  a  witness.     (6  Cow.  313.) 

Indirect  Injuries. 

An  indirect  injury  may  be  either  by  non-feasance,  or  the  omis- 
sion of  some  act  which  the  defendant  ought  to  perform  ;  or  by 
misfeasance,  being  the  improper  performance  of  some  act  which 
might  lawfully  be  done,  or  by  malfeasance,  the  doing  what  the 
defendant  ought  not  to  do. 

These  respective  wrongs  are  commonly  the  performance  or 
omission  of  some  act,  contrary  to  the  general  obligation  of  the 
law,  or  to  some  express  or  implied  contract  between  the  parties. 

To  the  person.  Either  to  the  absolute  or  relative  rights  of 
persons ;  that  is,  to  such  rights  as  appertain  to  particular  men 
merely  as  individuals  ;  or  to  such  rights  as  are  incident  to  all 
men  as  members  of  society.  The  person  injured  may  be  effect- 
ed either  in  his  own  person,  or  in  his  rights  as  a  husband,  pa- 
rent and  master.  The  injury  for  which  an  action  would  lie, 
may  result  to  the  individual  from  a  public  nuisance  ;  as  if  one 
throw  a  log  or  dig  a  ditch  across  the  highway,  and  a  ti-aveller 
thereby  fall  and  break  a  limb.  So  also  if  the  health  of  a  per- 
son be  impaired  by  the  erection  or  continuance  of  any  offensive 
or  noxious  works,  or  by  the  sale  of  unwholesome  provisions. 
Also  by  the  keeping  of  mischievous  animals,  the  person  keeping 
them  having  notice  of  their  propensity.  So  from  the  negligence 
of  another ;  as  where  the  defendant  carelessly  fired  a  pistol,  and 
wounded  the  plaintiff's  leg.     (14  J.  R.  432.) 

An  action  may  be  maintained  against  sheriffs,  constables  and 
other  ministerial  ofiicers,  for  oppressive  conduct  in  the  execu- 
tion of  process ;  (5  J.  R.  125  ;)  as  where  a  constable  had  a  war- 
rant to  collect  a  military  fine,  and  refused  to  take  other  property, 
but  took  and  sold  a  horse,  with  the  declared  intent  of  injuring 
the  feelings  of  the  delinquent.  If  an  officer,  having  authority  to 
attach  a  man's  goods,  keep  them  in  an  unsafe  place,  or  expose 
them  to  destruction,  he  acts  contrary  to  the  duties  of  his  office, 
and  will  be  liable  in  case  they  are  destroyed.     (9  J.  R.  381.) 

An  action  lies  for  injuries  affecting  the  rights  of  a  person  as 


48  THE  FORM  AND  GENERAL 

husband,  parent  or  master  ;  as  harboring  wives,  enticing  away 
children,  apprentices  or  servants  ;  the  consequent  loss  of  society 
or  service  being  the  ground  of  action. 

To  personal  property.  An  action  lies  for  injury  to  personal 
property  not  committed  with  force,  or  not  immediate ;  as,  for 
injury  to  animals  by  means  of  any  nuisance  erected  or  continued 
by  another,  or  for  damage  done  by  a  domestic  animal,  kept  for 
use  or  convenience,  to  the  animal  of  another  person,  provided 
the  owner  knew  that  the  animal  was  accustomed  to  do  like  mis- 
chief. (13  J.  R.  339.)  But  the  owner  of  a  dog  which  has  killed 
or  wounded  any  sheep  or  lamb,  is  liable  for  the  damage  done, 
whether  he  knew  that  the  dog  was  mischievous  or  disposed  to 
kill  sheep  or  not.  (1  R.  S.  701,  sec.  9.)  An  action  will  lie 
against  an  innkeeper  for  the  goods  of  his  guest  stolen  out  of  his 
inn  or  out-house,  even  although  the  innkeeper  is  chargeable 
with  no  negligence ;  as  where  the  doors  of  a  wagon-house  were 
broken  open,  and  the  plaintiff's  wheat  stolen.     (14  J.  R.  175.) 

An  action  lies  against  attorneys,  or  other  agents,  for  neglect 
or  other  breach  of  duty  or  misfeasance,  in  the  conduct  of  a 
cause  or  other  business. 

For  any  misfeasance  by  a  party  in  a  trade  which  he  pro- 
fesses, the  law  gives  an  action  to  the  party  aggrieved  ;  or  if  a 
smith,  in  shoeing  a  horse,  prick  him — and  other  like  cases. 

Actions  are  frequently  brought  before  Justices  for  deceit  in 
the  sale  or  exchange  of  goods  and  chattels.  If  the  seller  is 
guilty  of  a  fraudulent  concealment  of  material  facts,  an  action 
will  lie.  Fraud,  however,  is  not  to  be  presumed,  but  must  be 
satisfactorily  proved.  (18  J.  R.  403.)  A  mere  affirmation  of 
the  seller  that  an  article  is  worth  more  than  its  real  value,  when 
the  buyer  purchases  on  sight,  furnishes  no  ground  of  action. 
(5  J.  R.  354.)  There  is  one  case,  however,  in  which  an  action 
for  deceit  will  lie,  without  proof  of  misrepresentation,  and 
where  fraud  will  be  implied.  Thus,  in  the  sale  of  provisions 
for  domestic  use,  the  vendor  is  bound  at  his  peril  to  know  that 
they  arc  sound  and  wholesome — and  if  they  are  not,  he  will 
be  liable.     (12  J.  R.  408.) 

In  an  action  brought  to  recover  the  price  of  an  article  sold,  or 
in  a  suit  brought  on  a  promissory  note  given  for  the  price  of  an 
article,  the  defendant  may  show  fraud  in  the  sale,  and  thereby 
either  wiiolly  defeat  a  recovery  or  reduce  the  damages  accord- 
ing to  the  circumstances  of  the  case.     (8  Cow.  33,  34.) 


PRINCIPLES  OF  SUITS.  49 

To  Real  Property.  If  a  man  erect  a  spout  on  his  own  land, 
which  diverts  water  on  the  land  of  his  neighbor,  or  diverts  an 
ancient  water-course  to  the  injury  of  another,  an  action  lies. 
So  also  it  will  lie  at  the  suit  of  a  party  on  whose  application  a 
private  road  is  laid  out,  against  any  person  for  using  the  road. 
(14  J.  R.  383.) 

Every  man  has  a  right  to  erect  a  mill  on  his  own  land  ;  but 
if  he  so  construct  his  dam,  and  use  the  water  so  as  materially 
and  substantially  to  injure  his  neighb6r  in  the  enjoyment  of  the 
same  water,  according  to  its  natural  course,  an  action  will  lie  to 
recover  damages  for  the  injury.     (10  J.  R.  241.     15  J.  R.  215.) 

If  a  mill  dam  be  built,  pursuant  to  an  act  of  the  legislature, 
upon  a  stream  which  is  a  public  highway,  the  act  will  only  pro- 
tect against  an  indictment  for  a  nuisance  ;  and  persons  injured 
thereby  by  flowing,  <fec.,  may  prosecute  for  damages,  whether 
the  statute  authorize  the  erection  or  not.     (5  Cow.  165.) 

If  a  person,  in  building  a  house  adjoining  the  land  of  another, 
sink  his  foundation  below  the  foundation  of  his  neighbor's 
house,  he  is  liable  for  any  consequential  damages,  unless  he 
used  due  care  and  diligence  to  prevent  the  injury.  (17  J.  R.  92.) 
So,  also,  an  action  will  lie,  if  a  man  set  fire  to  his  own  fallow, 
and  through  his  negligence  the  fire  communicate  to  and  injure 
the  land  of  his  neighbor.  (8  J.  R.  421.)  It  is  a  settled  princi- 
ple that  every  man  ought  to  be  protected  in  the  prudent  exer- 
cise of  a  lawful  right ;  but  if,  through  want  of  care  and  dili- 
gence, in  the  exercise  of  such  right,  his  neighbor  suflers  injury, 
an  action  therefor  may  be  maintained. 

3.  From  the  Incurring  of  some  Penalty  given  hy  Statute. 

When  a  pecuniary  penalty  or  forfeiture  is  specially  granted 
by  law,  to  any  person  injured  or  aggrieved  by  any  act  or  omis- 
sion of  another,  the  same  may  be  sued  for  and  recovered,  and 
the  action  shall  be  prosecuted  and  conducted  in  the  same  man- 
ner as  other  personal  actions  in  all  respects,  unless  otherwise 
provided.     (2  R.  S.  575,  sec.  1,  2.) 

Actions  brought  by  the  District  Attorney  of  any  county,  or  by 
any  public  officer,  for  the  recovery  of  any  penalty  or  forfeiture, 
shall  also  be  conducted  and  prosecuted  in  the  same  manner  as 
personal  actions.     (Id.  sec.  3.) 

Where  any  penalty  or  forfeiture  is  given  by  law  to   any  per- 

4 


50  THE  FORM  AND  GENERAL 

son  who  will  sue  for  the  same,  such  suit  shall  be  brought  in  the 
name  of  the  person  commencing  the  same,  who  may  appear  by 
attorney ;  and  it  shall  be  conducted  and  prosecuted  in  all  re- 
spects in  the  same  manner  as  personal  actions,  and  shall  be  sub- 
ject to  the  provisions  of  law  concerning  personal  actions.  (Id. 
sec.  5.) 

Every  action  for  a  penalty  or  forfeiture  shall  be  brought  in 
the  county  where  the  act  was  done,  upon  which  such  penalty 
or  forfeiture  attached.  (Id.  sec.  8.)  Where  such  penalty  or  for- 
feiture attaches  in  consequence  of  the  omission  of  any  public 
officer  to  perform  any  duty  incident  to  his  office,  the  action  shall 
be  brought  for  the  recovery  thereof,  in  the  county  of  which  such 
person  was  an  officer.     (Id.  sec.  9.) 

There  are  a  great  variety  of  statutes  which  impose  penalties 
or  forfeitures  for  their  violation,  the  rules  of  prosecuting  for 
which  are  nearly  the  same  in  all  cases.  Justices  of  the  Peace 
have  cognizance  of  actions  upon  these  statutes  where  the  pen- 
alty does  not  exceed  one  hundred  dollars.  (Code,  sec.  53.  Id. 
sec.  54.) 

4.  Such  as  are  Prosecuted  hy  Attachment. 

The  subject  of  attachment  of  property  in  Justices'  Courts,  is 
very  fully  discussed  in  another  part  of  this  work.  To  avoid 
repetition,  therefore,  I  shall  not  treat  of  it  under  this  head. 


Actions  are  not  cognizable  by  a  Justice  of  the  Peace  in  the  fol- 
lowing cases.     (Code,  sec.  54.) 

1.  In  suits  in  which  the  people  of  the  state  are  a  party,  ex- 
cepting for  penalties  not  exceeding  one  hundred  dollars. 

2.  In  suits  where  the  title  to  real  properly  shall  come  in  ques- 
tion. 

3.  An  action  for  assault  and  battery,  false  imprisonment,  libel, 
slander,  malicious  prosociUion,  criminal  conversation  or  seduc- 
tion. 

4.  Matter  of  account,  where  the  sum  total  of  the  accounts  of 
both  i)arti('s,  proved  to  the  satisfaction  of  the  Justice,  shall  ex- 
coed  four  Inindrcd  dollars. 

B.  Action  against  executors  or  administrators  as  such. 


PRINCIPLES  OF  SUITS.  51 

The  Code  speaks  of  an  action  upon  a  liability  created  by  stat- 
ute other  than  a  penalty  or  forfeiture.  (CodOj  sec.  91.)  Such 
an  action  is  not  within  the  jurisdiction  of  a  Justices'  Court,  un- 
less it  comes  within  an  action  on  contract,  or  of  an  action  for 
injury  to  personal  or  real  property. 

It  is  believed  that  Justices  of  the  Peace  have  not  cognizance 
of  actions  for  the  recovery  of  penalties  imposed  by  bye-laws  of 
cities,  villages  and  towns.  It  is  true,  the  authority  to  enact 
laws  imposing  such  penalties,  must  depend  on  a  power  derived 
from  some  statute ;  yet  the  penalties  are  not  imposed  by  any 
statute,  and  consequently  do  not  come  within  the  description  of 
cases  in  which  jurisdiction  is  conferred  upon  Justices'  Courts. 
(See  Hayden's  Appen.  71.) 


CHAPTER    III. 

OF    THE    COMMENCEMENT    OF    SUITS. 

The  subjects  of  this  chapter,  are  the  following  : 

1.  The  manner  in  which  suits  may  be  instituted  before  a 
Justice. 

2.  Definition  of,  and  various  kinds  of  process. 

3.  Statement  of  cause  of  action  in  summons,  how  made. 
Nature  of  summons,  and  service  thereof.  Distinction  between 
a  long  and  a  short  summons,  and  when  they  are  respectively 
used. 

4.  Definition  of  a  warrant.  In  what  actions  process  by  war- 
rant applicable.     Steps  preliminary  to  obtaining  a  warrant. 

5.  Manner  of  arrest,  and  proceedings  subsequent  thereto. 

6.  In  what  cases  process  by  attachment  applicable.  Appli- 
cation for  attachment  how  made.  Steps  preliminary  to  obtain- 
ing an  attachment.  Distinction  between  a  long  and  a  short 
attachment,  and  when  they  are  respectively  used.  Manner  of 
executing  attachment,  and  proceedings  subsequent  thereto. 

7.  General  rules  applicable  to  process. 

Suits  may  be  instituted  before  a  Justice,  by  the  voluntary 
appearance  and  agreement  of  the  parties,  or  by  process. 

Process  is  the  means  used  for  compelling  the  defendant  to 
appear  in  court.  (3  Blk.  Com.  279.)  It  must  be  by  summons, 
rvarrant,  or  attachm^ent.    2  R.  S.  326,  sec.  12.) 

When  the  suit  is  instituted  without  process,  it  must  be  deemed 
to  have  commenced  at  the  time  of  the  parties  making  their 
complaint  and  answer.     (Id.  sec.  13.) 

If  a  summons  or  an  attachment  is  issued,  the  suit  is  com- 
menced when  the  process  is  delivered  to  the  constable.  When 
two  or  more  suits  are  instituted  by  summons  or  attachment  on 
the  same  day,  that  suit  is  deemed  first  commenced  in  which 
the  process  is  first  served.     (Id.) 

Wlif'ro  a  wainiiit  is  tlie  process  used,  the  suit  is  commenced 
at  the  time  of  the  arrest  ol'  tlie  defendant.     (Id.) 


OF  THE  COMMENCEMENT  OF  SUITS.  53 

1.  Summons. 

A  summons  is  a  writ  issued  by  the  Justice.  It  is  directed  to 
any  constable  of  the  county  where  the  Justice  resides,  com- 
manding him,  in  the  name  of  the  people  of  the  state,  to  sum- 
mon the  defendant  to  appear  before  the  Justice  who  issues  it,  at 
a  time  and  place  to  be  named  in  the  summons,  to  answer  the 
plaintiff  in  the  action,  in  the  same  summons  to  be  mentioned. 

FORM    OF    A    SUMMONS. 

Chenango  County,  ss. 

To  any  constable  of  said  county,  greeting  : — 

You  are  hereby  commanded,  in  the  name  of  the  people  of  the 
state  of  New  York,  to  summon  Henry  Brown,  if  he  shall  be 
found  in  said  county,  to  appear  before  me,  the  undernamed,  a 
Justice  of  the  Peace  of  said  county,  at  my  office  in  the  town  of 
Oxford,  county  aforesaid,  on  the  10th  day  of  May,  instant,  at 
10  o'clock  in  the  forenoon,  to  answer  John  Smith,  in  an  action 
on  a  promissory  note,  to  the  sum  of  one  hundred  dollars,  or 
under.  And  have  you  then  there  this  precept,  with  your  return 
thereupon,  as  by  law  required.  Hereof  fail  not  at  your  peril. 
Give  under  my  hand  at  Oxford  aforesaid,  the  2d  day  of  May, 
1849. 

David  Long,  Justice. 

The  statement  of  the  cause  of  action  will,  of  course,  vary 
with  the  nature  of  the  suit.  If  the  action  is  for  injury  to  the 
plaintiff's  person,  or  to  the  person  of  his  wife,  or  servant,  or  for 
an  injury  to  his  personal  or  real  property,  or  for  taking  or  de- 
taining personal  property,  or  if  it  is  an  action  for  a  statute  pen- 
alty, it  should  be  so  stated.  If  the  plaintiff  sues,  or  the  defend- 
ant is  sued,  in  a  particular  character,  such  character  should  be 
stated  in  the  summons. 

The  summons  is  the  most  usual  process  of  a  Justices'  Court. 
By  the  abolishment  of  imprisonment  for  debt,  it  has  become  of 
almost  universal  application.  By  the  non-imprisonment  act. 
passed  in  1831,  no  person  can  be  arrested  or  imprisoned  on  any 
civil  process,  or  on  any  execution  issuing  out  of  any  court  in 
this  state,  in  any  suit  or  proceeding  instituted  for  the  recover}' 
of  any  money  due  upon  any  judgment  or  decree  founded  upon 
contract,  or  due  upon  any  contract,  express  or  implied,  or  for 


54  OF  THE  COMMENCEMENT  OF  SUITS. 

the  recovery  of  any  damages  for  the  non-performance  of  any 
contract.  It  is  however  enacted,  that  the  foregoing  shall  not 
apply  to  proceedings  as  for  contempts,  to  enforce  civil  remedies ; 
nor  to  actions  for  fines  or  penalties  ;  or  on  promises  to  marry  ; 
or  for  monies  collected  by  any  public  officer ;  or  for  any  mis- 
conduct or  neglect  in  office,  or  in  any  professional  employment. 

In  actions  for  the  recovery  of  damages,  on  causes  of  action 
not  arising  out  of  contract,  the  defendant  may,  as  hereafter  will 
appear,  still  be  arrested. 

The  summons  must  be  served,  if  the  defendant  be  found,  by 
reading  it  to  him,  and  (if  required)  delivering  a  copy.  If  the 
defendant  be  not  found,  by  leaving  a  copy  at  his  last  place  of 
abode  in  the  presence  of  some  one  of  the  family  of  suitable  age 
and  discretion,  who  must  be  informed  of  its  contents.*  (2  R. 
S.  327,  sec.  16.) 

The  time  for  the  service  and  return  of  a  summons,  is  go- 
verned by  the  consideration  of  its  being  a  lojig  or  a  short 
summons. 

By  a  loJig  sutnmons,  is  understood  a  summons  which  is  re- 
turnable not  less  than  six,  nor  more  than  twelve  days  from  its 
date  and  which  must  be  served  at  least  six  days  before  the 
time  of  appearance  mentioned  therein. 

By  a  short  summons,  is  meant  a  summons  which  is  returna- 
ble not  less  than  two,  nor  more  than  four  days  from  its  date, 
and  which  must  be  served  at  least  two  days  before  the  time  of 
appearance  mentioned  therein. 

When  both  parties  are  residents  of  the  county,  the  long 
summons  must  be  adopted.  So  also,  when  the  plaintiff  is  a 
non-resident  of  the  county,  and  does  not  make  proof  before  the 
Justice,  by  affidavit,  of  his  non-residence,  and  give  security,  the 
long  summons  is  the  proper  process. 

When  the  plaintiff  is  a  non-resident,  and  has  a  demand 
against  a  resident  defendant  arising  on  contract,  he  may  serve 
the  defendant  with  a  short  summons,  upon  making  an  affidavit 
of  his  non-residence,  and  giving  security  for  the  payment  of 
any  sum  that  may  bo  adjudged  against  him.  (15  Wend.  652. 
5  Hill,  323.) 


•  If  llio  HiimrnonB  is  served  by  leaving  a  copy  at  the  defendant's  last  place  of 
abode,  :ind  the  defendant  doea  not  uppcur  in  obedience  to  it,  the  Justice  should  issue 
ftqother,  or  alias  aurnmont. 


OF  THE  COMMENCEMENT  OF  SUITS.  95 

The  proof  of  non-residence  must  be  by  affidavit.  It  is  not 
enough  that  the  Justice  personally  knows  the  plaintiff  to  be  a 
non-resident.  (12  J.  R.  422.)  The  affidavit  may  be  made  by 
the  plaintiff,  or  by  any  other  person  cognizant  of  the  fact. 

FORM    OF    AFFIDAVIT. 

Queens  Counts/,  ss. — Selah  Strong  of  the  city  of  Brooklyn, 
county  of  Kings,  being  duly  sworn  before  Alvin  Hunt,  one  of 
the  Justices  of  the  Peace  of  Hempstead,  in  the  county  of 
Ctueens,  says  that  he  has,  as  he  verily  believes,  (or,  if  made  by 
a  third  person,  that  A.  B.  has,  as  deponent  verily  believes.)  a 
good  cause  of  action  arising  on  contract,  against  John  Hall  of 
Hempstead,  aforesaid,  and  that  this  deponent,  (or  the  said  A^ 
B.,)  is  not  a  resident  of  the  said  county  of  Q^ueens. 

Sklah  Strong. 
Subscribed  and  sworn  before  me,  this 
3d  day  of  May,  1849. 

Alvin  Hunt,  Justice. 

The  Justice  should  then  take  security  from  the  plaintiff,  for 
the  payment  of  any  sum  that  may  be  adjudged  against  him. 
This  security  extends  to  the  final  determination  of  the  cause, 
when  carried  up  by  appeal,  so  that  the  surety  is  liable  to  the 
costs  of  appeal,  if  adjudged  against  the  plaintiff.  (17  Wend. 
434.)  It  may  be  by  a  deposite  of  money  with  the  Justice,  of 
sufficient  amount  to  meet  the  full  sum,  which  can,  by  possibil- 
ity, be  recovered  of  the  plaintiff  by  the  defendant.  It  is  most 
usual,  however,  to  give  written  security. 

FORM    OF    SECURITY. 

Queens  County,  ss. — Selah  Strong,  having,  upon  the  requi- 
site proof  of  his  being  a  non-resident  of  the  county  of  Q,ueens, 
made  application  to  Alvin  Hunt,  one  of  the  Justices  of  the 
Peace  of  Hempstead,  in  said  county,  for  a  short  summons  in  his 
favor,  against  John  Hall,  in  an  action  arising  on  contract.  Now, 
therefore,  for  value  received,  and  according  to  the  form  of  the 
statute  in  such  case  made  and  provided,  I  do  hereby  consent  to 
become  security  for  the  said  Selah  Strong,  and  engage  that  the 
said  Selah  Strong  shall  pay  the  said  Hall  any  sum  that  shall 


56  OF  THE  COMMENCEMENT  OF  SUITS. 

be  adjudged  against  him,  the  said  Selah  Strong,  in  the  suit  com- 
menced or  to  be  commenced  by  the  said  summons. 

Frederick  Walker. 
Signed,  taken,  and  acknowledged  be- 
fore me,  this  3d  day  of  May,  1849. 

Alvin  Hunt,  Justice. 

When  the  defendant  is  a  non-resident  of  the  county,  and  the 
cause  of  action  arises  on  contract,  express  or  impHed,  the  pro- 
cess must  be  by  short  summons.  (Non-Im.  Act,  sect.  33.)  In 
such  a  case,  process  may  issue  of  course,  without  any  prehmi- 
nary  steps  bemg  taken,  no  oath  or  security  being  required  of  the 
plaintiff.     (23  Wend.  338.) 

2.   Of  Process  hy  Warrant. 

A  warrant  is  a  writ  running  in  the  name  of  the  people  of  the 
State,  and  directed  to  the  constable  of  any  county  where  the 
Justice  issuing  the  same  resides,  commanding  the  constable  to 
take  the  defendant,  and  bring  him  forthwith  before  the  Justice, 
to  answer  the  plaintiff  in  an  action  in  such  warrant  to  be  men- 
tioned ;  and  further  requiring  the  constable,  after  he  shall  have 
arrested  the  defendant,  to  notify  the  plaintiff  of  such  arrest. 

FORM    OF    WARRANT. 

Chenango  County^  ss. 

The  people  of  the  State  of  New  York,  to  any  constable  of  the 
said  county,  greeting  : — 

We  hereby  command  you  to  take  Thomas  Nokes,  if  he  shall . 
be  found  in  said  county,  and  bring  him  forthwith  before  me,  the 
undernamed  Justice  of  the  Peace,  at  my  office,  in  the  town  of 
Greene,  in  said  county,  to  answer  John  Stow,  in  an  action  for 
moneys  collected  by  the  said  Nokes,  as  a  public  officer,  to  the  said 
Stow's  damage  of  one  hundred  dollars. 

And  you  arc  furthor  connuandcd,  after  you  shall  have  arrested 
the  defendant,  to  notify  tlie  plaintiff  of  such  arrest,  and  make 
due  return  hereupon,  as  by  law  required.  Given  under  my 
hand,  at  Greene,  aforesaid,  the  5th  day  of  May,  1819. 

Robert  Doyle,  Justice. 


OF  THE  COMMENCEMENT  OF  SUITS.  57 

ANOTHER    FORM    OP    WARRANT. 

Chenango  County^  ss. 

The  people  of  the  State  of  New  York,  to  any  constable  of  said 
county,  greeting : 

Whereas,  William  Place  has  this  day  made  complaint  on 
oath,  before  David  Long,  a  Justice  of  the  Peace  of  the  said 
county,  that  John  Stiles  has  maliciously  and  wantonly  broken 
down  the  fences  of  the  said  William  Place,  on  his  farm  in  the 
town  of  Oxford,  in  said  county.  We,  therefore,  command  you 
to  take  the  said  John  Stiles  and  bring  him  forthwith  before  the 
said  David  Long,  to  be  dealt  with  according  to  law ;  and  after 
you  shall  have  arrested  the  defendant,  do  you  notify  the  plain- 
tiff thereof  Hereof  fail  not  at  your  peril.  Given  under  my 
hand  this  5th  day  of  May,   1849. 

David  Long,  Justice. 

Since  the  passage  of  the  act  to  abolish  imprisonment  for  debt, 
and  to  punish  fraudulent  debtors,  as  amended  by  the  act  of 
1840,  process  by  warrant  is  rendered  inapplicable  to  a  vast  ma- 
jority of  actions  instituted  before  Justices  of  the  Peace.  In  the 
collection  of  demands  arising  on  contract,  such  as  on  notes, 
book  accounts,  (fee,  this  kind  of  process  is  specially  prohibited 
by  the  act  referred  to. 

The  excepted  cases  in  which  a  defendant  may  still  be  arrested 
in  actions  on  contract,  were  enumerated  under  the  head  of  pro- 
cess by  summons.  In  all  such  actions,  as  well  as  in  actions  for 
wrongs,  the  Justice,  if  application  were  made  to  him,  would  be 
hound  to  issue  his  warrant  against  the  defendant.  (2  R.  S.  327, 
sec.  18.) 

1.  When  the  defendant  is  a  non-resident  of  the  county. 

2.  When  the  plaintiff  is  a  non-resident,  and  tenders  to  the 
Justice  security  for  the  payment  of  any  sum  which  may  be  ad- 
judged against  him  in  the  suit. 

3.  When  it  shall  appear,  to  the  satisfaction  of  the  Justice,  by 
the  ajjidavit  of  the  applicant,  or  of  any  other  witness,  that  the 
person  against  whom  such  warrant  is  desired,  is  about  to  depart 
from  the  county  with  intent  not  to  return  thereto. 

4.  Where  the  defendant  is  an  inhabitant  of  the  county,  hav- 
ing a  family,  or  a  freeholder  of  the  same  county,  and  it  shall  in 
like  manner  appear  to  the  satisfaction  of  the  Justice,  that  the 


58  OF  THE  COMMENCEMENT  OF  SUITS. 

plaintiff  will  be  in  danger  of  losing  his  debt  or  demand,  unless 
such  warrant  be  granted.* 

In  making  appHcation  for  a  warrant,  the  person  applying 
must  make  affidavit  of  the  facts  and  circumstances  within  his 
knowledge,  to  satisfy  the  Justice  of  the  propriety  of  issuing  the 
warrant.  (2  R.  S.  327,  sec.  20.)  The  proof  by  affidavit  is  indis- 
pensable, and  the  Justice  cannot  dispense  with  it,  under  the  pre- 
tence that  he  is  satisfied  without  proof     (1  Wend.  216.) 

The  following  forms  may  serve  as  precedents  : — 

Chenango  County,  ss. — John  Burns,  of  Oxford,  in  the  county 
of  Chenango,  being  duly  sworn  before  David  Long,  one  of  the 
Justices  of  the  Peace  of  Oxford,  in.  the  county  of  Chenango, 
says  that  he  has,  as  he  believes,  a  good  cause  of  action  against 
Richard  Roe,  of  Oxford  aforesaid,  for  taking  and  converting  to 


*  The  Code  declares  that  its  provisions  in  relation  to  the  arrest  of  defendants, 
shall  not  affect  the  act  to  abolish  imprisonment  for  debt,  and  to  punish  fraudulent 
debtors,  passed  April  26,  1831,  or  any  act  amending  the  same.  From  the  Revised 
Statutes,  as  modified  by  this  act,  is  derived  the  lav?  in  relation  to  the  issuing  of  weir- 
rants  from  Justices'  Courts. 

The  Code  enacts  that  no  person  shall  be  arrested  in  a  civil  action,  except  in  the 
manner  prescribed,  and  in  the  following  cases  : — 

1.  In  an  action  for  the  recovery  of  damages,  on  a  cause  of  action  not  arising  out 
of  contract,  where  the  defendant  is  not  a  resident  of  the  state,  or  is  about  to  remove 
therefrom,  or  where  the  action  is  for  a  wilful  injury  to  person  or  character,  or  wil- 
fully injuring,  taking,  detaining  or  converting  property. 

2.  In  an  action  for  a  fine  or  penalty,  or  on  a  promise  to  marry,  or  for  money  re- 
ceived, or  property  embezzled,  or  fraudulently  misapplied  by  a  public  officer  or  by 
an  attorney,  solicitor  or  counsellor,  in  the  course  of  his  employment  as  such,  or  by 
any  person  in  a  fiduciary  capacity,  or  for  any  misconduct  or  neglect  in  office,  or  in 
a  professional  employment. 

3.  In  an  action  to  recover  the  possession  of  personal  property  unjustly  detained, 
where  the  property  has  been  concealed  or  removed,  so  that  it  cannot  be  found  or 
taken  by  the  sheriff. 

4.  Where  the  defendant  lias  been  guilty  of  a  fraud,  in  contracting  the  debt,  or 
incurring  the  obligation  for  which  tiio  action  is  brought,  or  in  concealing  or  dispo- 
sing of  the  property,  for  the  taking,  detention,  or  conversion  of  which  the  action  is 
brought. 

5.  When  the  defendant  has  removed  or  disposed  of  his  property,  or  is  about  to  do 
HO,  with  intent  to  defraud  his  creditors. 

Hut  no  female  Hhall  bo  urrcHted  in  any  action,  except  for  a  wilful  injury  to  per- 
son, character  or  i)roperty. 

By  reference  to  tiio  Code,  it  will  bo  perceived  that  the  foregoing  provisions,  in  re- 
lation to  arrest,  are  mainly  applicable  to  courts  of  record. 


OF  THE  COMMENCEMENT  OF  SUITS.  59 

his  own  use  the  personal  property  of  this  deponent,  namely : 
[here  insert  a  list  of  the  articles  taken.\  This  deponent  further 
says  that  he  is  not  a  resident  of  the  county  of  Chenango,  and 
is  ready  to  give  security  for  the  payment  of  any  sum  that  may 
be  adjudged  against  him  in  this  suit. 

John  Burns. 
Subscribed  and  sworn  before  me, 

this  5th  day  of  June,  1849. 

David  Long,  Justice. 

Chenango  County,  ss. — John  Smith,  of  Oxford,  in  the  county 
of  Chenango,  being  duly  sworn  before  David  Long,  one  of  the 
Justices  of  the  Peace  of  the  said  town,  says  that  Richard  Roe, 
against  whom  he  makes  application  for  warrant,  in  pursuance  of 
the  statute  in  such  case  made  and  provided,  and  against  whom 
he  has,  as  he  verily  believes,  a  just  cause  of  action,  is  not  a  re- 
sident of  the  county  of  Chenango,  but  is  a  resident  of  the  county 
of  Oneida.  And  deponent  further  says,  that  the  said  cause  of 
action  is  for  moneys  collected  by  the  said  Richard  Roe,  in  his 
official  character  as  constable. 

John  Smith. 
Subscribed  and  sworn  this  5th  day 

of  June,  1849,  before  me. 

David  Long,  Justice. 

Chenango  County,  ss. — Henry  Strong,  being  duly  sworn, 
says  that  he  has,  as  he  verily  believes,  a  good  cause  of  action 
against  Richard  Roe,  for  taking  and  converting  to  his  own  use 
the  personal  property  of  this  deponent,  to  wit :  [here  itisert  a  list 
of  the  articles  taken.]  And  deponent  further  says  that  said 
Roe,  is,  as  deponent  verily  believes,  about  to  depart  from  said 
county,  with  intent  not  to  return  thereto,  and  that  the  facts  and 
circumstances  on  which  that  belief  is  founded  are  :  [here  state 
the  grounds  of  belief  according  to  the  facts.] 

Or,  deponent  believes  he  will  be  in  danger  of  losing  his 
demand  against  the  said  Richard  Roe,  unless  a  warrant  be 
granted ;  and  that  such  belief  is  founded  upon  the  following 
facts  and  circumstances,  to  wit :  [here  state  the  grounds  of 
danger.] 

Henry  Strong. 
Subscribed  and  sworn  before  me, 

this  5th  day  of  June,  1849. 

David  Long,  Justice. 


60  OF  THE  COMMENCEMENT  OF  SUITS. 

When  a  non-resident  plaintiff  applies  for  a  warrant,  he  is  re- 
quired to  give  security  for  the  payment  of  any  sum  that  may 
be  adjudged  against  him  in  the  suit.  (2  R.  S.  327,  sec.  18.)  It 
has  been  decided  that  this  security  may  be  a  deposit  of  money 
with  the  Justice.  (13  J.  R.  481.)  As,  however,  the  security 
extends  to  the  final  determination  of  the  cause,  if  carried  up  by 
appeal,  it  would  be  better  in  all  cases,  in  order  to  make  sure  ^ 
of  its  sufficiency,  to  take  the  engagement  of  some  responsible 
person  in  writing.     (7  J.  R.  18.     1  Cow.  99.     7  Wend.  434.) 

The  following  form  may  be  adopted  : — 

Chenango  County,  ss. — John  Smith  having,  upon  the  requi- 
site proof  of  his  being  a  non-resident  of  the  county  of  Che- 
nango, made  application  to  David  Long,  one  of  the  Justices  of 
the  Peace  of  Oxford,  in  said  county,  for  a  warrant  in  his  favor 
against  Richard  Roe,  in  an  action  for  moneys  collected  by  said 
Roe,  in  his  official  character  as  constable :  Now,  therefore,  for 
value  received,  and  according  to  the  statute  in  such  case  made 
and  provided,  I  do  hereby  consent  to  become  security  for  the 
said  John  Smith,  and  engage  that  the  said  Smith  shall  pay  the 
said  Roc  any  sum  that  shall  be  adjudged  against  him,  the  said 
Smith,  in  the  suit  to  be  commenced  by  the  said  warrant. 

Robert  Doyle. 
Signed,  taken  and  acknowledged  before 

me  this  5th  day  of  June,  1849. 

David  Long,  Justice. 

The  constable  serving  the  warrant  must  return  thereupon,  in 
"writing,  the  manner  in  which  he  executed  the  same,  and  the 
fact  whether  he  has  or  has  not  notified  the  plaintiff.  (2  R.  S.  328, 
sec.  23.) 

FORM    OF    RETURN. 

T  liavo  arrested  the  defendant,  and  notified  the  plaintiff,  as 
witliin  commanded. 

William  Cooke,  Constable. 

Th(;  d(jfi;n(laiil  umst  be  actiiuUi/,  that  is,  personally  arrested^ 
and  brought  be/ore  the  Justice.  If  not,  a  judgment  rendered 
upon  tlif  warrant,  will  ])c  void.     (0  Cow.  61.) 

If  the  Justice  who  issued  the  warrant  be  absent  on  its  return, 
or  unable  to  hear  or  try  tlic  cause,  or  if  it  be  made  to  appear  by 


OF  THE  COMMENCEMENT  OF  SUITS.  Ql 

the  affidavit  of  the  defendant,  that  the  Justice  is  a  material  wit- 
ness in  the  cause,  the  constable  must  take  the  defendant  before 
the  next  Justice  of  the  city  or  town,  who  will  be  required  to 
take  cognizance  of  the  cause,  and  proceed  thereon,  as  if  the 
warrant  had  been  issued  by  him.     (2  R.  S.  328.  sec.  22.) 

When  the  defendant  is  brought  before  the  Justice  by  warrant, 
he  must  be  detained  in  the  custody  of  the  constable  until  re- 
leased by  the  Justice ;  but  the  justice  must  discharge  the  defen- 
dant after  the  expiration  of  twelve  hours  from  the  time  he  is 
brought  before  him,  unless  within  that  time  the  trial  of  the  cause 
is  commenced,  or  unless  it  is  delayed  at  the  instance  of  the  de- 
fendant.    (Sec.  26.) 

3.   Of  Process  by  Attachment. 

Process  by  attachment  is  only  applicable  to  demands  arising 
on  contract,  or  on  a  judgment.  The  statute  requires  that  the 
attachment  shall  state  the  amount  of  the  debt  sworn  to  by  the 
applicant,  and  command  any  constable  of  the  county  in  which 
the  Justice  resides,  to  attach  so  much  of  the  goods  and  chat- 
tels of  the  debtor,  as  will  be  sufficient  to  satisfy  such  debt,  and 
safely  keep  the  same,  in  order  to  satisfy  any  judgment  that  may 
be  recovered  on  such  attachment ;  and  to  make  return  of  the 
proceedings  therein,  to  the  Justice  who  issued  the  same.  (2  R. 
S.  329,  sec.  31.) 

For  an  attachment  to  issue,  the  demand  must,  as  I  have  al- 
ready stated,  be  in  all  cases  founded  on  contract  or  upon  a  judg- 
ment ;  (sec.  28 ;)  and  the  demand  must  be  against  the  debtor 
personally — that  is,  due  from  him  in  his  own  right,  and  not  as 
executor  or  administrator,  heir  or  trustee.     (1  John.  Cas.  376.) 

There  are  three  instances  in  which  an  attachment  is  allowed 
by  statute.    (2  R.  S.  328,  sec.  27.    Sess.  Laws,  1831,  sec.  33,  34.) 

1.  When  it  shall  appear  to  the  satisfaction  of  the  Justice,  that 
the  debtor  has  departed,  or  is  about  to  depart,  from  the  county 
where  he  last  resided,  with  intent  to  defraud  his  creditors,  or  to 
avoid  the  service  of  any  civil  process ;  or  that  such  debtor  keeps 
himself  concealed  with  the  like  intent. 

2.  Whenever  by  the  provisions  of  the  thirtieth  section  of  this 
(non-im.)  act  no  warrant  can  issue,  and  the  defendant  shall 
reside  out  of  the  county,  he  shall  be  proceeded  against  by  sum- 
mons or  attachment,  returnable  not  less  than  two  nor  more  than 


Q2  OF  THE  COMMENCEMENT  OF  SUITS. 

four  days  from  the  date  thereof,  which  shall  he  served  at  least 
two  days  before  the  time  of  appearance  mentioned  therein,  and 
if  such  defendant  be  proceeded  against  otherwise,  the  Justice 
shall  have  no  jurisdiction  of  the  cause. 

3.  For  the  recovery  of  any  debt  or  damages  arising  upon  any 
contract,  express  or  implied,  or  upon  any  judgment  for  one 
hundred  dollars  or  less,  whenever  it  shall  satisfactorily  appear 
to  the  Justice  that  the  defendant  is  about  to  remove  from  the 
county  any  of  his  property,  with  intent  to  defraud  his  creditors, 
or  has  assigned,  disposed  of,  secreted,  or  is  about  to  assign,  dis- 
pose of,  or  secrete  any  of  his  property  with  like  intent,  whether 
such  defendant  be  a  resident  of  the  state  or  not. 

Application  for  an  attachment  may  be  made  to  the  Justice  by 
the  creditor  or  his  personal  representatives,  or  by  any  other  per- 
son in  the  creditor's  behalf.  The  application  must  be  in  wri- 
ting.    (2  R.  S.  328,  sees.  28,  29.) 

FORM    OF    APPLICATION. 

To  James  Day,  one  of  the  Justices  of  the  Peace  of  Williams- 
burgh,  in  the  county  of  Kings  : 

I  hereby  make  application  for  process  by  attachment,  against 
the  property  of  John  Stiles,  pursuant  to  statute. 

Henry  Mason. 

The  application  must  be  accompanied  by  the  affidavit  of  the 
creditor,  or  his  agent,  proving  to  the  satisfaction  of  the  Justice, 
that  a  proper  case  for  attachment  exists.  It  should,  therefore, 
state  specifically  the  nature  of  the  demand  ;  the  sum,  as  near  as 
possible,  in  which  the  debtor  is  indebted,  over  and  above  all  dis- 
counts ;  the  grounds  upon  which  the  application  is  founded,  and 
tlie  facts  and  circumstances  which  sustain  those  grounds.  (2 
R.  S.  328,  sec.  29.) 

As  the  affidavit  is  preliminary  to  the  actual  commencement 
of  the  suit,  and  there  is  no  cause  pending  at  the  time  it  is  taken, 
it  should  not  be  entitled. 

The  affidavit  should  contain  a  full  and  distinct  statement  of 
facts  and  circumstances,  and  not  merely  the  inferences  or  belief 
of  the  applicant  or  witnesses.  The  magistate  should  be  enabled 
to  dct<!niiino  jitdicinUi/,  from  the  facts  before  him,  whether  the 
attachment  ouglit  to  issue.  The  belief  of  the  plaintiff  is  nei- 
ther a  fact  nor  circumstance  upon  which  the  Justice  can  exer- 


OF  THE  COMMENCEMENT  OF  SUITS.  63 

cise  his  judgment.  Facts  must  be  shown  to  the  Justice  which 
shaU  leave  no  reasonable  doubt  on  his  mind,  that  the  defendant 
has  committed,  or  is  about  to  commit  the  fraudulent  acts  men- 
tioned in  the  statute.  (13  Wend.  404.  14  id.  237.)  It  will  not 
answer  to  omit  the/«c^5  and  circumstances  m  the  affidavit,  and 
supply  the  omission  by  a  verbal  statement.  The  whole  must 
be  set  out  in  the  affidavit  itself  ^  so  that  all  concerned  may  know 
what  facts  are  detailed,  by  an  examination  of  the  papers  on  file 
with  the  Justice.     (Id.) 

The  affidavit  must  state  that  the  demand  arose  upon  contract, 
or  upon  judgment.  It  must  also  allege  that  the  acts  charged 
upon  the  defendant,  were  done  with  the  intetit  to  defraud  credi- 
tors. It  is  not  enough  merely  to  set  forth  the  facts  and  leave  it 
to  the  Justice  to  infer  the  intent.     (Id.) 

FORM    OF    creditors'    AFFIDAVIT. 

Kings  County,  ss. — Henry  Mason,  of  Williamsburgh,  in  the 
county  of  Kings,  being  duly  sworn,  says,  that  John  Stiles,  late, 
or  now  a  resident  of  said  county,  is  justly  indebted  to  this  de- 
ponent, on  a  demand  arising  upon  contract,  (or  upon  a  judg- 
ment,) in  the  sum,  as  near  as  this  deponent  can  now  estimate 
the  same,  of  seventy-five  dollars,  over  and  above  all  discounts 
which  the  said  John  Stiles  has  against  him. 

This  deponent  further  says,  that  the  application  for  an  attach- 
ment against  the  property  of  the  said  John  Stiles,  which  accom- 
panies this  affidavit,  is  made  on  the  ground  that  the  said  John 
Stiles  has  departed  (or  is  about  to  depart)  from  the  said  county 
of  Kings,  where  he  last  lived  ;  or  that  the  said  John  Stiles  keeps 
himself  concealed,  with  intent  to  defraud  his  creditors  (or  with 
the  intent  to  avoid  the  service  of  civil  process ;)  or  that  the  said 
John  Stiles  is  about  to  remove  his  property  from  the  said  county 
of  Kings,  or  has  assigned,  disposed  of,  or  secreted,  or  is  about 
to  assign,  dispose  of,  or  secrete  his  property,  with  intent  to  de- 
fraud his  creditors. 

And  this  deponent  further  says,  that  the  facts  and  circum- 
stances upon  which  he  founds  his  belief,  are  as  follows :  [here 
state  the  facts. ^ 

Henry  Mason. 
Subscribed  and  sworn  before  me, 

this  1st  day  of  May,  1849. 

James  Day,  Justice. 


64  OF  THE  COMMENCEMENT  OF  SUITS. 

If  the  affidavit  is  made  by  the  agent  of  the  creditor,  the  form 
must  be  varied  accordingly. 

The  appKcant  is  further  required  to  execute  to  the  defendant, 
and  deliver  to  the  Justice,  a  bond  Avith  sufficient  surety  to  be 
approved  by  the  Justice  i?i  ivriting  ujjon  the  bond,  in  the  pen- 
alty of  two  hundred  dollars,  conditioned  to  pay  the  defendant 
all  damages  and  costs  which  he  may  sustain  by  reason  of  issu- 
ing such  attachment,  if  the  plaintiff  fails  to  recover  judgment 
thereon ;  and  if  such  judgment  be  recovered,  that  such  plain- 
tiff will  pay  the  defendant  all  moneys  which  shall  be  received 
by  him  from  any  property  levied  on  by  such  attachment,  over 
and  above  the  amount  of  such  judgment,  and  interest  and  costs 
thereon.     (2  R.  S.  329,  sec.  30.) 

The  bond  need  not  in  all  cases  be  executed  by  the  plaintiff. 
The  statute  expressly  provides  for  its  being  executed  by  the  ap- 
plicant and  surety. 

The  statute  is  explicit  as  to  the  form  of  the  security,  and  a 
deposit  of  money  with  the  Justice  to  the  amount  of  the  penalty 
of  the  bond,  or  indeed  to  any  amount,  would  not  be  sufficient. 
(13  J.  R.  481.) 

FORM    OF    A    BOND. 

Know  all  men  by  these  presents,  that  we,  Henry  Mason  and 
Richard  Roe,  of  Williamsburgh,  in  the  county  of  Kings,  are 
held  and  firmly  bound  unto  John  Stiles,  now  or  late  of  Wil- 
liamsburgh aforesaid,  in  the  sum  of  two  hundred  dollars  ;  to  be 
paid  to  the  said  John  Stiles,  or  to  his  certain  attorney,  executors, 
administrators  or  assigns ;  to  which  payment  we  bind  ourselves, 
our  heirs,  executors  and  administrators,  jointly  and  severally, 
firmly  by  these  presents.  Sealed  with  our  seals,  and  dated  the 
first  day  of  May,  1849. 

The  condition  of  this  obligation  is  such,  that  whereas  the 
said  Henry  Mason  has  made  application  to  James  Day,  one  of 
the  Justices  of  the  Peace  of  Williamsburgh  aforesaid,  for  process 
by  attachment  against  the  property  of  John  Stiles,  now  or  late 
of  Kings  county  aforesaid,  pursuant  to  the  statute  in  such  case 
made  and  provided :  Now,  therefore,  the  condition  of  this  obli- 
gation is  sucli,  if  said  attachment  shall  be  issued,  and  Henry 
Mason  shall  pay  to  the  said  John  Stiles  all  damages  and  costs 


OF  THE  COMMENCEMENT  OF  SUITS.  gg 

which  he  shall  sustain  by  reason  of  the  issuing  of  such  attach- 
ment, if  said  Henry  Mason  shall  fail  to  recover  judgment  there- 
on ;  and  if  such  judgment  be  recovered,  and  said  Henry  shall 
pay  to  the  said  John  all  moneys  which  shall  be  recovered  by 
him  from  any  property  levied  upon  by  such  attachment,  over 
and  above  the  amount  of  such  judgment,  and  interest  and  costs 
thereon — then  this  obligation  to  be  void  ;  otherwise,  of  force. 

Henry  Mason,  [l.  s.] 
Richard  Roe,  [l.  s.] 
Sealed  and  delivered  in  presence  of 

James  Day. 

The  bond  should  be  regularly  sealed  ;  that  is,  an  impression 
should  be  made  upon  wax  or  wafer,  or  some  other  tenacious 
substance.  A  scrawl  with  a  pen  of  L.  S.  or  other  sign,  is  not  a 
seal.    (3  J.  R.  239.     12  id.  197.) 

An  attachment,  like  a  summons,  is  long  or  short. 

By  a  long  attachment  is  understood  an  attachment  which  is 
returnable  not  less  than  six,  nor  more  than  twelve  days  from  its 
date,  and  which  must  be  served  at  least  six  days  before  the  re- 
turn day. 

By  a  short  attachment  is  meant  an  attachment  which  is  re- 
turnable not  less  than  two,  nor  more  than  four  days  from  its 
date,  and  which  must  be  served  at  least  two  days  before  the  re- 
turn day. 

FORM    OF    attachment. 

Kings  Cou7ity,  ss. 

The  people  of  the  State  of  New  York,  to  any  constable  of 
the  said  county,  greeting : — 

Whereas,  Henry  Mason  has  made  application  to  me,  the  un- 
dersigned, being  one  of  the  Justices  of  the  Peace  of  Williams- 
burgh,  in  the  county  aforesaid,  in  writing,  for  an  attachment  in 
his  favor,  against  the  property  of  John  Stiles,  according  to  the 
provisions  of  the  act  to  abolish  imprisonment  for  debt,  (or  in 
pursuance  of  the  Revised  Statutes,  in  such  case  made  and  pro- 
vided,) for  a  debt  of  seventy-five  dollars,  being  the  amount  sworn 
to  by  the  applicant,  which  debt  arose  upon  contract ;  and  has, 
in  all  respects,  complied  with  the  requirements  of  the  statute, 
to  entitle  himself  to  such  process  :  you  are  hereby  commanded 
to  attach  so  much  of  the  goods  and  chattels  of  the  said  John 
Stiles  (which  are  not  exempt  from  execution)  as  will  be  suffi- 

5 


(56  OF  THE  COMMENCEMENT  OF  SUITS. 

cient  to  satisfy  such  debt,  and  safely  keep  the  same  to  satisfy 
any  judgment  that  may  be  recovered  on  this  attachment ;  and 
to  make  return  of  your  proceedings  hereon  to  me,  at  my  office 
in  Williamsburgh,  on  the  8th  day  of  May  instant,  at  two  o'clock 
in  the  afternoon ;  and  have  you  then  and  there  this  precept. 
Given  luider  my  hand,  at  Williamsburgh,  this   1st  day  of 

May,  1849. 

James  Day,  Justice. 

What  has  been  said  of  attachments,  applies  principally  to  the 
long  attachment.  A  short  attachment  is  only  appUcable  in  a 
single  instance,  to  wit :  against  a  non-resident  of  the  county 
where  it  issues,  upon  a  demand  on  which  a  warrant  cannot  be 
issued.  (Non-lm.  Act,  33.)  To  obtain  a  short  attachment, 
neither  a  written  application,  affidavit  or  bond  is  required.  (15 
Wend.  479.  23  id.  336.  Vide  4  Denio,  592,  contra.)  The  ap- 
plicant is  entitled  to  it  in  all  cases  where  he  has  a  demand  ari- 
sing upon  contract  liquidated,  or  subject  to  liquidatioji,  and 
the  defendant  is  a  non-resident.     (5  Hill,  264.     6  id.  311.) 

The  constable  is  required  to  execute  the  attachment  by  seiz- 
ing the  property,  making  an  inventory  of  it,  and  serving  a  copy 
of  the  attachment  and  inventory,  certified  by  him,  on  the  de- 
fendant personally  ;  (Non-Im,  Act,  36  ;)  or  in  case  the  defend- 
ant is  not  found  in  the  county,  by  leaving  sucli  copy  at  his  last 
place  of  residence  ;  or  if  the  defendant  have  no  place  of  resi- 
dence in  the  county  where  the  goods  and  chattels  are  attached, 
by  leaving  such  copy  with  the  person  in  whose  possession  the 
property  is  found.     (2  R.  S.,  2d  ed.,  163,  sec.  31.) 

Upon  taking  the  goods,  the  constable  is  at  his  peril  to  see  that 
they  are  safely  kept.  He  is  considered  in  the  light  of  a  bailee, 
and  accountable  to  either  party  for  ordinary  negligence,  by 
which  either  sustains  an  injury ;  though  if  they  be  lost  or  de- 
stroyed without  his  fault,  he  is  not  accountable.     (6  J.  R.  9.) 

No  goods  attached  by  a  constable  shall  be  removed  by  him, 
if  a  bond  be  given  and  delivered  to  such  constable,  by  any 
person,  with  sufficient  surety,  to  be  approved  by  the  constable, 
in  a  penalty  double  the  sum  stated  in  the  attachment  to  have 
been  sworn  to  by  the  plaintiff,  conditioned  that  such  goods  and 
chattels  shall  be  produced  to  satisfy  any  execution  that  may  be 
issued  upon  any  judgment  which  shall  be  obtained  by  the 
plaintiff,  upon  sucli  attaciimcnt,  within  six  months  after  the 
date  of  such  l)ond.     (2  R.  S.,  2d  cd.,  163,  sec.  32.) 


OF  THE  COMMENCEMENT  OF  SUITS.  ^7 

BOND    TO    PREVENT    THE    REMOVAL    OF    GOODS    ATTACHED. 

Know  all  men  by  these  presents,  that  we,  John  Stiles  and 
Samuel  Pieison,  of  Williamsburgh,  in  the  county  of  Kings,  are 
held  and  firmly  bound  unto  William  Cooke,  constable  of  Kings 
county,  aforesaid,  in  the  sum  of — ^[double  the  amount  of  the 
debt  or  demand] — to  be  paid  to  the  said  William  Cooke,  or  to 
his  certain  attorney,  executors,  administrators,  or  assigns  ;  to 
which  payment,  well  and  truly  to  be  made,  we  bind  ourselves 
our  heirs,  executors,  and  administrators,  jointly  and  severally. 
firmly  by  these  presents.  Sealed  with  our  seals,  and  dated  the 
2d  day  of  May,  1849. 

The  condition  of  this  obligation  is  such,  that  whereas  the 
said  William  Cooke,  has  seized  certain  goods  and  chattels,  to 
wit : — [here  enumerate  them] — by  virtue  of  an  attachment 
issued  by  James  Day,  Justice,  in  favor  of  Henry  Mason  against 
John  Stiles  aforesaid.  Now,  therefore,  if  said  goods  and  chat- 
tels shall  be  produced  to  satisfy  any  execution  that  may  be 
issued  upon  any  judgment  which  shall  be  obtained  by  the 
plaintiff  upon  the  said  attachment,  within  six  months  after  the 
date  hereof,  then  this  obligation  to  be  void  ;  otherwise  of  force. 

John  Stiles,         [l.  s.] 
Samuel  Pierson,  [l.  s.] 
Sealed  and  delivered  in  presence  of 
Henry  Brown. 

The  constable  should  endorse  on  the  bond  his  approval, 
thus  : — 

I  approve  of  the  surety  of  the  within  bond,  deeming  it  suffi- 
cient. William  Cooke,  Constable. 

If  any  person  shall  claim  any  goods  or  chattels  attached  by 
a  constable,  he  may  after  such  seizure,  and  at  any  time  before 
execution  shall  have  been  issued  upon  the  judgment  obtained 
on  such  attachment,  execute  a  bond  to  the  plaintiff,  with  sure- 
ties to  be  approved  by  the  constable,  or  by  the  Justice  who 
issued  the  attachment,  in  a  penalty  double  the  value  of  the 
property  attached,  conditioned,  that  in  a  suit  to  be  brought  on 
such  bond,  within  three  months  from  the  date,  such  claimant 
will  establish  that  he  was  the  owner  of  the  goods  seized,  at  the 
time  of  such  seizure ;  and  in  case  of  his  failure  to  do  so,  that 


68  OF  THE  COMMENCEMENT  OF  SUITS. 

he  will  pay  the  value  of  the  goods  so  claimed,  with  interest. 
Upon  such  bond  being  executed  and  delivered  to  the  constable, 
he  shall  deliver  up  the  property  seized  by  him,  to  the  obligor  in 
the  bond.     (2  R.  S.  2d  ed.,  163,  sees.  33,  34.) 

BOND    BY    CLAIMANT    OF    PROPERTY    ATTACHED. 

Know  all  men  by  these  presents,  that  we,  John  Doe,  Richard 
Roe,  and  Samuel  Hill,  of  Williamsburgh,  in  the  county  of 
Kings,  are  held  and  firmly  bound  unto  Henry  Mason  in  the 
sum  of— [double  the  value  of  the  property  attached] — to  be  paid 
to  the  said  Henry  Mason,  or  to  his  certain  attorney,  executors, 
administrators,  or  assigns,  to  which  payment,  well  and  truly  to 
be  made,  we  bind  ourselves,  our  heirs,  executors,  and  adminis- 
trators, jointly  and  severally,  firmly  by  these  presents.  Sealed 
with  our  seals,  and  dated  the  2d  day  of  May,  1849. 

The  condition  of  this  obligation  is  such,  that  whereas  William 
(Jooke,  of  Kings  county  aforesaid,  has  seized  certain  goods  and 
chattels  by  virtue  of  an  attachment  issued  by  James  Day,  a 
Justice  of  the  Peace  of  the  county  aforesaid,  in  favor  of  Henry 
Mason  against  John  Stiles  ;  and  whereas  the  above  bounden 
John  Doe  claims  the  ownership  of  the  said  property :  Now, 
therefore,  if  a  suit  shall  be  brought  on  this  obligation,  within 
three  months  after  its  date,  and  the  said  John  Doe  shall  estab- 
lish thereby  that  he  was  the  owner  of  the  said  goods,  at  the 
time  of  the  said  seizure ;  or  in  case  of  his  failure  to  do  so,  if 
the  said  John  Doe,  shall  pay  the  value  of  said  goods  and 
chattels  with  interest,  then  this  obligation  to  be  void  ;  otherwise 
of  force. 

John  Doe,  [l.  s.] 

Richard  Roe,    [l.  s.] 
Samuel  Hill,    [l.  s.J 
Sealed  and  delivered  in  presence  of 
William  Cooke. 
Either  the  Justice,  or  constable,  should  endorse  on  the  bond 
his  approval.     (2  R.  S.,  2d  ed.,  1G3,  sec.  33.) 

If  no  bond  is  tendered,  the  constable  must  take  the  goods 
into  his  possession.  This  possession  may  be  merely  construct- 
ive ;  and  the  constable  is  authorized  to  take  a  receipt  for  the 
future  delivery  of  the  goods.     He  is,  however,  equally  rcspon- 


OF  THE  COMMENCEMENT  OF  SUITS.  69 

sible  for  the  property,  as  though  it  were  in  his  actual  custody. 
(12  Wend.  563,  565.) 

The  constable  serving  the  attachment,  must  at  the  return 
day,  makes  his  return  to  the  Justice,  witli  all  his  proceedings 
thereon,  in  writing,  subscribed  by  him.  A  copy  of  the  inven- 
tory of  the  goods  attached,  certified  by  him,  together  with  any 
bond  which  may  have  been  executed  and  delivered  to  him, 
must  be  returned.  And,  in  addition,  he  must  state  specifically, 
whether  the  attachment  was,  or  was  not,  personally  served 
upon  the  defendant.  {2  R.  S.,  2d  ed.,  163,  sec.  35.  Non-Imp. 
Act.  36.) 

The  day  of  attaching  the  goods  and  serving  the  copy,  ought 
to  be  stated  in  the  return.  It  should  also  appear  by  the  return, 
that  the  attachment  was  served,  both  in  time  and  manner,  in 
compliance  with  the  requirements  of  the  statute.   (16  J.  R.  121.) 

When  the  goods  seized  are  so  few  in  number,  that  the  inven- 
tory may  be  made  upon  the  copy  of  the  attachment,  the  cons- 
table should  endorse  upon  the  copi/  to  be  lefty  thus  : 

"  By  virtue  of  an  attachment,  of  which  the  within  is  a  copy, 
I  have  this  day  attached  and  taken  into  my  custody,  the  fol- 
lowing goods  and  chattels  of  the  within  named  defendant,  to 
wit:  one  horse,  one  plough,  &.c. — [enumerating  the  articles.] 
Dated  May  2d,  1849. 

"  William  Cooke,  Constable." 

If  the  articles  seized  are  numerous,  let  the  constable  draw  a 
list  of  them  on  a  separate  paper,  annex  it  to  the  copy  of  the 
attachment,  and  endorse  on  such  copy,  thus  : 

"  By  virtue  of  an  attachment,  of  which  the  within  is  a  copy, 
I  have  this  day  attached  and  taken  into  my  custody  the  goods 
and  chattels  of  the  within  named  defendant,  which  are  specified 
in  the  inventory  or  schedule  hereunto  annexed.     Dated  May 

2d,  1849. 

"  William  Cooke,  Constable." 

When  the  constable  makes  his  return,  if  the  articles  taken 
are  few,  he  should  endorse  on  the  attachment  thus  : 

"  By  virtue  of  the  within  attachment,  I  did  on  the  2d  day  of 
February,  instant,  attach  and  take  into  my  custody,  the  follow- 
ing goods  and  chattels  of  the  within  named  defendant,  to  wit : 
one  horse,  one  plough,  &c., — [enumerating  the  articles] — and 


70  OF  THE  COMMENCEMENT  OF  SUITS. 

did,  immediately  thereupon  make  an  inventory  of  the  property 
so  seized,  and  leave  a  copy  of  said  attachment,  and  of  said  in- 
ventory, by  me  certified,  with  the  defendant  personally — (or  at 
the  last  place  of  residence  of  said  defendant,  whom  I  was 
unable  to  find  in  the  county) — (or  with  Richard  Roe,  in  whose 
possession  I  found  the  said  goods  and  chattels,  the  said  defend- 
ant not  having  any  place  of  residence  in  the  county  of  Kings.") 

If  the  articles  seized  are  numerous,  make  a  separate  list, 
annex  it  to  the  attachment,  and  endorse  the  return  thus  : 

"  By  virtue  of  the  within  attachment,  I  did,  on  the  2d  day  of 
May,  instant,  attach  and  take  into  my  custody,  all  and  singular, 
the  goods  and  chattels  specified  in  the  annexed  inventory  or 
schedule,  and  did  immediately  thereupon,  &c.,  (as  in  the  prece- 
ding form.") 

If  the  defendant  or  a  claimant  of  the  property  give  the  bond 
to  prevent  their  removal,  required  by  statute  ;  or  if  the  consta- 
ble take  a  receipt  for  the  future  delivery  of  the  property,  it  should 
be  so  stated  in  the  return. 

If  the  proceedings  in  obtaining  an  attachment  are  regular,  the 
Justice  cannot  supersede  the  attachment,  but  must,  on  the  re- 
turn thereof,  if  the  defendant  was  served  personally,  proceed  to 
hear  the  cause,  as  on  the  return  of  a  summons.  (9  J.  R.  130.) 
If  the  service  was  not  personal,  and  the  attachment  was  issued 
under  any  of  the  provisions  of  the  non-imprisonment  act,  a  sum- 
mons is  to  be  issued,  upon  the  return  of  which,  personally  served, 
or,  that  after  diligent  inquiry,  the  defendant  cannot  be  found,  the 
Justice  is  to  proceed  and  hear  the  cause.    (Non-Im.  Act,  sec.  38.) 

The  statute  prescribes  no  form  for  this  summons,  neither  does 
it  direct  what  time  may  intervene  between  the  date  and  return. 
It  is  presumed  the  ordinary  form  of  a  summons  should  be  used  : 
that  is,  if  a  long  altacJiment,  use  a  long  summons ;  if  a  short 
attachment,  use  a  short  summons  ;  and  have  it  served  in  the 
same  manner  as  in  other  cases. 

If  the  defendant  cannot  bo  found  in  the  county  after  diligent 
search,  the  constable  should  make  return  of  the  fact  on  the  sum- 
mons to  the  Justice,  who  is  then  authorized  to  hear  the  cause 
on  the  return  day  of  tlio  summons. 

FORM    OF    constable's    RETURN. 

I  hereby  certify,  that  I  have  made  diligent  search,  and  the  within 


OF  THE  COMMENCEMENT  OF  SUITS.  71 

named  defendant  cannot  be  found  in  the  county,  upon  whom  I 
can  serve  the  within  summons.     Dated,  May  10th,  1849. 

William  Cooke,  Constable. 

A  hen  is  created  upon  the  goods  taken  by  virtue  of  an  attach- 
ment issued  on  the  apphcation  of  a  bona  fide  creditor,  not  only 
against  the  debtor  but  against  all  other  creditors.  This  lien, 
however,  will  expire,  if  the  creditor  do  not  prosecute  his  suit  to 
judgment  and  execution  with  all  due  diligence.  If  the  creditor 
acts  with  ordinary  diligence  in  a  bona  fide  endeavor  to  collect 
his  judgment,  this  is  all  that  should  be  demanded  of  him.  (10 
J.  R.  129.) 

General  Rules  Applicable  to  Process. 

If  process  shall  have  issued  against  two  or  more  persons 
jointly  indebted,  and  shall  have  been  personally  served'upon  ei- 
ther of  the  defendants,  the  defendant  who  may  have  been  served 
with  process  shall  answer  to  the  plaintiff';  and  the  judgment  in 
such  case,  if  rendered  in  favor  of  the  plaintiff,  shall  be  against 
all  the  defendants,  in  the  same  manner  as  if  all  had  been  served 
with  process.  Such  judgment  shall  be  conclusive  evidence  of 
the  liability  of  the  defendant,  Avho  was  personally  served  with 
process  in  the  suit,  or  who  appeared  therein  ;  but  against  every 
other  defendant,  it  shall  be  evidence  only  of  the  extent  of  the 
plaintiff''s  demand,  after  the  liability  of  such  defendant  shall 
have  been  established  by  other  evidence.  (2  R.  S.  2d  ed.  176,  sees. 
122,  123.) 

The  individual  proceeded  against  must  be  notified  in  some 
legal  form,  in  order  to  confer  jurisdiction  upon  the  court  or  ma- 
gistrate. If,  therefore,  the  Justice  should  give  judgment  with- 
out process  or  appearance,  the  whole  would  be  void.  (17  J.  R.  41.) 

The  process  must  also  be  properly  served.  If  process  be  exe- 
cuted by  a  constable  not  having  authority,  this  gives  the  magis- 
trate no  jurisdiction  of  the  person,  and  if  he  proceed,  he  is  liable. 
(7  Cow.  269.     8  id.  361.) 

An  arrest,  strictly  speaking,  is  the  actual  corporal  seizing  or 
taking  the  defendant's  body.  (3  Blk.  288.)  A  manual  taking 
of  the  body,  however,  is  not  necessary.  It  is  the  same  thing  as 
an  actual  arrest,  if  the  officer  tell  the  defendant  that  he  has  a 
process  against  his  body,  and  he  submits  and  goes  along  with 
him ;  or  that  the  party  be  within  his  power,  and  submits  to  the 


72  OF  THE  COMMENCEMENT  OF  SUITS. 

arrest ;  or  that  the  officer  goes  into  the  defendant's  room,  tells 
him  that  he  arrests  him  and  locks  the  door.     (1  Wend.  210.) 

If  a  man  be  arrested,  or  his  lands  entered,  or  his  goods  taken 
by  process  of  execution,  issued  upon  a  judgment  void  for  want 
of  jurisdiction  of  the  court  rendering  it,  he  may  have  his  ac- 
tion for  the  injury.  In  most  cases  of  this  nature,  liability  at- 
taches to  both  the  Justice  and  party.  If  the  body  of  the  party 
be  taken,  it  is  an  assault  and  false  imprisonment ;  if  his  lands 
be  entered,  it  is  an  illegal  breach  of  his  close ;  and  if  his  goods 
be  taken  it  is  a  trespass  or  conversion  ;  for  either  of  which  in- 
juries an  action  may  be  brought  against  all  or  any  of  those  per- 
sons who  have  been  the  instruments  for  effecting  the  injury,  and 
who  had  knowledge  of  the  facts  which  go  to  invalidate  the  judg- 
ment or  proceeding.     (1  Cow.  R.  400.) 

A  constable  would  be  protected  in  the  execution  of  process, 
although  the  Justice  had  not,  i?i  fact,  jurisdiction  in  the  case ; 
provided  it  appear  on  the  face  of  the  process,  that  the  court  has 
jurisdiction  of  the  subject  matter,  and  nothing  appears  in  the 
same  to  apprise  the  officer,  but  that  the  court  has  also  jurisdic- 
tion of  the  person  of  the  party  to  be  affected  by  the  process.   (Id.) 

Civil  process  issued  on  Sunday,  is  void.  (1  R.  S.  675.)  The 
filling  up  of  process,  equally  with  the  delivering  of  it  to  the  offi- 
cer to  be  executed  on  Sunday,  is  illegal.     (12  J.  R.  178.) 

All  process  issued  by  a  Justice  of  the  Peace  must  be  signed 
by  him.  It  may  be  under  seal,  or  without  seal.  (2  R.  S.  194, 
sec.  232.) 

Every  summons,  warrant,  attachment,  and  execution  issued 
by  a  Justice  of  the  Peace,  must  be  entirely  filled  up,  having  no 
blank,  in  the  date  or  otherwise,  at  the  time  of  its  delivery  to  an 
officer  to  be  executed.  Process  issued  and  delivered  to  an  offi- 
cer contrary  to  this  provision,  will  be  void  ;  and  the  Justice  is- 
suing it  will  be  guilty  of  a  misdemeanor,  and  subject  to  a  fine 
or  imprisonment,  or  both  and  a  forfeiture  of  his  office.  (2  R.  S. 
2d  ed.  194,  sees.  233  230.) 

If  a  Justice  sign  a  blank  summons,  and  deliver  it  to  the  plain- 
tiff to  be  filled  up  in  his  presence,  and  under  his  control,  it  is 
not  a  violation  of  the  statute.     (20  J.  R.  G3.) 

A  genf'ral  authority  by  a  Justice  to  a  constable,  to  alter  pro- 
cess, would  bo  void;  but  an  authority  to  alter  a  particular  pro- 
cess, would  bo  valid.     It   is  presumed  that  a  Justice  could  not 


OF  THE  COMMENCEMENT  OF  SUITS.  73 

authorize  a  third  person  to  alter  a  particular  process,  unless  it 
was  done  in  his  presence,  and  under  his  control.     (10  J.  R.  405.) 

A  Justice  may  amend  an  attachment  issued  by  him,  by  in- 
serting, after  the  return  of  the  process,  the  amount  of  the  debt 
sworn  to  by  the  applicant.     (14  Wend.  230.) 

The  defendant  should  object  to  any  irregularity  in  the  process 
the  first  opportunity.  If  he  takes  any  step  which  supposes  the 
process  to  be  valid,  he  cannot  afterwards  object.  (2  Caines, 
134.  17  J.  R.  63.)  All  manner  of  defects,  either  in  the  form  or 
substance  of  process,  are  waived  or  cured,  as  far  as  any  ques- 
tion may  arise  in  the  particular  suit,  by  the  defendant's  omitting 
to  take  advantage  of  them.  The  appearing  at  the  return  of  pro- 
cess, for  the  purpose  of  making  an  objection,  is  not  a  waiver  of 
irregularity.     (14  J.  R.  481.) 

Every  Justice  who  issues  process,  excepting  a  venire,  when- 
ever he  shall  judge  it  expedient,  on  the  request  of  a  party,  may^^ 
by  written  authority  endorsed  on  such  process,  empower  any 
proper  person,  being  of  lawful  age,  (that  is,  of  the  age  of  twenty- 
one  years,)  and  not  a  party  in  interest  in  the  suit,  to  execute  the 
same.  The  person  thus  empowered  will  possess  all  the  powers, 
and  be  subject  to  all  the  obligations  of  a  constable  in  relation  to 
the  execution  of  the  process,  but  can  receive  no  fee  or  reward 
for  his  services.     (2  R.  S.,  2d  ed.,  199,  sees.  271,  272.) 

FORM    OF    AUTHORITY. 

At  the  request  of  the  plaintiff,  I  hereby  empower  John  Smith 
to  execute  the  within  proeess.     Dated  May  3d,  1849. 

James  Day,  Justice. 

If  a  constable  ask  or  receive  any  money  or  valuable  thing 
from  a  defendant,  or  any  other  person,  as  a  consideration,  re- 
ward, or  inducement,  for  omitting  to  arrest  any  defendant,  or  to 
carry  him  before  any  Justice  ;  or  for  delaying  to  take  any  party 
to  prison ;  or  for  postponing  the  sale  of  any  property  under  any 
execution ;  or  for  omitting  or  delaying  the  execution  of  any 
duty  pertaining  to  his  office  ;  he  will  be  deemed  guilty  of  a 
misdemeanor,  and  be  subject  to  fine  or  imprisonment,  or  both, 
and  a  forfeiture  of  his  office.     (2  R.  S.,  2d  ed.,  194,  sec.  234.) 

A  constable  to  whom  process  is  delivered,  must  execute  the 
same  in  person,  and  cannot  act  by  deputy  in  any  case.  (Id. 
199,  sec.  273.)     He  may,  however,  command  as  many  male  in- 


74  OF  THE  COMMENCEMENT  OF  SUITS. 

habitants  of  the  county  to  assist  him  as  he  may  think  proper, 
when  he  is  resisted  in  the  execution  of  process,  or  has  reason 
to  apprehend  such  resistance. 

An  officer  has  no  right  to  break  into  the  defendant's  house  to 
execute  civil  process.  If,  however,  he  once  obtains  a  peaceable 
entrance,  he  may  break  open  any  inner  door  to  execute  the  pro- 
cess, after  a  demand  of  admission  and  refusal.  (5  J.  R.  253. 
17  J.  R.  127.) 

A  house  is  only  a  sanctuary  to  the  owner  and  his  family.  If, 
therefore,  any  other  person  flies  to  it,  it  may  be  broken  open  to 
arrest  the  fugitive,  after  a  request  to  open  the  door,  and  a  re- 
fusal. 

In  the  execution  of  civil  process,  an  officer  may  break  open 
a  store,  warehouse  or  barn,  not  annexed  to  a  dwelling  house, 
nor  forming  any  part  of  it.     (16  J.  R.  287.) 

The  parties  to  a  suit  and  their  witnesses,  and  all  persons  en- 
gaged in  the  trial  of  a  cause,  are  protected  from  arrest  on  civil 
process  in  coming  to,  attending  upon,  and  returning  from  court. 
(2  R.  S.,  2d  ed.,  323,  sec.  63.) 

The  privilege  above  mentioned  is  a  privilege  from  arrest  only. 
Such  persons  will  therefore  be  liable  to  the  service  of  process, 
which  is  served  without  an  arrest,  as  a  summons. 

Whenever  an  election  is  held  in  any  city  or  town,  no  civil 
process  shall  be  served,  in  any  such  city  or  town,  on  any  elec- 
tor entitled  to  vote  therein  during  such  election.  (1  R.  S.  116, 
sec.  4.)  This  extends  to  all  civil  process,  but  is  confined  to  the 
town  in  which  the  elector  is  entitled  to  vote. 

Military  are  exempt  from  arrest,  on  civil  process,  from  sunrise 
to  sunset,  on  the  day  of  parade.     (Id.  298,  sec.  27.) 


CHAPTER    IV. 

APPEARANCE    OF    THE    PARTIES. 

I  SHALL  treat  the  subjects  of  this  chapter  under  the  followhig 
heads : — 

1.  When  the  Parties  are  to  Aj)pear. 

2.  HoiD  the  Parties  are  to  Appear. 

3.  Of  Appeara7ice  hy  Attorney. 

4.  Appearance  by  Guardian. 

1.   When  the  Parties  are  to  Aj)pear. 

Upon  the  return  of  a  summons  personally  served,  or  on  the 
return  of  an  attachment  duly  served,  the  Justice  shall  wait  one 
hour  after  the  time  specified  for  the  return  of  such  process,  un- 
less the  parties  shall  sooner  appear.  (2  R.  S.  165,  sec.  46.)  If 
the  plaintiff  fail  to  appear  within  the  hour,  or  within  an  hour 
after  the  time  to  which  the  cause  may  have  been  adjourned — in 
either  case,  judgment  of  nonsuit,  with  costs,  is  to  be  rendered 
against  him.     (Id.  176,  sec.  119.) 

Notwithstanding  the  limitation  of  time  prescribed  by  statute 
for  the  Justice  to  await  the  appearance  of  the  parties,  he  may, 
for  satisfactory  reasons,  delay  calling  the  cause  beyond  the 
time ;  or,  if  the  cause  be  called,  permit  the  defendant,  after  the 
hour  has  elapsed,  to  appear,  plead,  and  enter  upon  his  defence. 
It  is  left  to  the  discretion  of  the  Justice  as  to  what  will  amoimt 
to  a  sufficient  reason  for  extending  the  time.  No  precise  rule 
can  be  laid  down.  Each  case  will  have  its  own  peculiarities, 
and  the  Justice  should  consult  the  convenience  of  the  parties, 
at  the  same  time  that  he  avoids  doing  anything  which  may  tend 
to  the  prejudice  of  either.  (10  Wend.  102.  12  id.  150.  20  J. 
R.  309.) 

The  absence  of  the  Justice  on  the  return  or  adjourned  day, 
operates  as  a  discontinuance  of  the  suit ;  but  the  parties  may 
afterwards  proceed  to  trial  by  consent.     (1  Cow.  245.) 

In  the  case  of  a  warrant  which  has  no  definite  time  of  return, 


76  APPEARANCE  OF  THE  PARTIES. 

the  Justice  is  empowered  to  detain  the  defendant  twelve  hours 
after  he  is  brought  before  him ;  and  if,  within  that  time,  the 
plaintiff  do  not  appear,  and  proceed  with  the  trial  of  the  cause, 
unless  the  cause  is  delayed  at  the  instance  of  the  defendant,  the 
defendant  must  be  discharged.     (2  R.  S.  162,  sec.  25.) 

Upon  the  return  of  a  summons  personally  served,  or  on  the 
return  of  an  attachment  duly  served,  or  at  the  time  to  which 
the  cause  has  been  adjourned,  if  the  plaintiff  appear,  and  the 
defendant  do  not  appear,  the  Justice,  after  waiting  one  hour, 
may  proceed  to  hear  the  cause  on  the  part  of  the  plaintiff. 

2.  How  the  Parties  are  to  Appear. 

Any  plaintiff  in  a  suit  before  a  Justice,  except  persons  under 
twenty-one  years  of  age,  may  appear  and  conduct  his  suit, 
either  in  person  or  by  attorney.     (2  R.  S.,  2d  ed.,  164,  sec.  39.) 

An  appearance  of  some  kind,  by  the  plaintiff,  is  indispensa- 
ble to  authorize  the  Justice  to  give  judgment  in  his  favor,  unless 
such  appearance  be  waived  by  the  opposite  party.  If  the  de- 
fendant object  to  the  plaintiff's  non-appearance,  the  Justice 
cannot  render  a  judgment  in  his  favor,  even  upon  confession. 
(9  J.  R.  140.) 

Every  defendant  in  a  suit,  except  persons  under  twenty-one 
years  of  age,  may  appear  and  defend  tjie  same  in  person,  or  by 
attorney  ;  but  where  a  warrant  shall  have  been  served  on  a  de- 
fendant and  returned,  no  fm-ther  proceedings  shall  be  had 
against  him,  until  he  shall  have  personally  appeared  in  court. 
(2  R.  S.,  2d  ed.,  164,  sec.  41.) 

A  judgment  cannot  be  rendered  against  a  defendant,  unless 
he  personally  appear  in  court,  except  upon  the  return  of  a  sum- 
mons personally  served,  or  an  attachment  duly  executed.  Even 
a  written  confession  of  a  judgment  by  a  defendant,  is  irregular, 
unless  he  appear  in  court  to  make  the  same.  (2  R.  S.,  2d  ed.,  175, 
sec.  114.  6  J.  R.  126.)  Tiic  process  to  authorize  a  judgment  must 
be  against  a  defendant  having  a  right  by  law  to  appear  in 
proper  person,  or  by  attorney.  If,  therefore,  a  Justice  render 
judgment  against  an  infant  defendant,  on  his  default,  upon  the 
return  of  a  summons  personally  served,  or  an  attachment  exe- 
cuted against  him,  witliout  first  appointing  him  a  guardian,  to 
appear  and  defond,  the  judgment  is  erroneous.     (2  J.  R.  192.) 

When  the  defendant   is  brought  before  the  Justice  upon  the 


APPEARANCE  OF  THE  PARTIES.  77 

return  of  a  warrant,  and  is  discharged  by  the  Justice  in  conse- 
quence of  an  adjournment  of  the  cause — either  on  motion  of  the 
plaintiff,  or  on  the  consent  of  both  parties,  or  on  motion  of  the 
defendant,  and  giving  security,  &c. — his  subsequent  appearance 
in  the  cause  may  be  by  attorney. 

3.   Of  Ap'pearance  hy  Attorney. 

A  party  authorized  to  appear  by  attorney,  may  appoint  any 
person  to  act  as  such  attorney ;  but  the  constable  who  served 
either  the  original  or  jury  process  in  the  cause,  shall  not  appear 
and  advocate  for  either  party  at  the  trial,  but  may  act  as  attor- 
ney in  any  other  stage  or  proceeding  in  the  cause.  (2  R.  S., 
2d  ed.,  164,  sec.  44.) 

It  would  seem  that  the  constable  may  appear  as  attorney  and 
join  issue ;  and  indeed,  do  any  act  in  the  cause,  except  appear- 
ing and  advocating  at  the  trial. 

The  authority  to  appear  by  attorney  may  be  either  written  or 
verbal,  and  shall  in  all  cases  be  proved,  either  by  the  attorney 
himself,  or  other  competent  testimony,  unless  admitted  by  the 
opposite  party  ;  and  the  Justice  shall  not  permit  any  person  to 
appear  for  another,  without  such  proof  or  admission.  (Id. 
sec.  45.) 

A  mere  verbal  request,  is  a  sufficient  authority  for  an  attorney 
to  appear  and  manage  a  cause  ;  (11  J.  R.  464;  1  Cow.  113  ;) 
and  the  attorney  himself  may  be  sworn  to  prove  his  right  or 
authority  to  appear,  upon  the  opposite  party  objecting  that  he 
has  no  power.     (Id.) 

Proof  of  the  authority  of  a  person  claiming  to  appear  for 
another,  is  not  necessary,  except  the  other  party  objects  the 
want  of  authority  ;  (15  Wend.  652  ;)  or  unless  there  is  no  ap- 
pearance on  the  part  of  the  opposite  party,  in  which  case  proof 
of  authority  should  always  be  required. 

4.  Appearance  hy  Guardian. 

In  a  case  where  the  plaintiff  is  under  twenty-one  years  of 
age,  a  suitable  person  must  be  appointed  by  the  Justice  as 
guardian,  to  aid  him  in  conducting  the  suit.  (Code.  sec.  115. 
2  R.  S.,  2d  ed.,  164,  sec.  40.) 

This  appointment  of  guardian  must  be  made  before  process 


78  APPEARANCE  OF  THE  PARTIES. 

is  issued  ;  or  when  issae  is  joined  without  process,  before  the 
issue  is  heard.     (Id.) 

A  guardian  for  an  infant  plaintiff,  is  appointed  upon  the  peti- 
tion of  the  infant,  if  he  be  of  the  age  of  fourteen  years,  or  if 
under  that  age,  upon  tlie  petition  of  some  other  party  to  the 
suit,  or  of  a  relative  or  friend  of  the  infant.     (Code,  sec.  116.) 

Any  person  of  full  age,  who  will  undertake  the  plaintiff's 
cause,  may  be  appointed  his  guardian.  But  as  the  guardian  is 
liable  for  the  costs  recovered  against  the  plaintiff,  the  Justice 
ought  to  be  satisfied  that  he  is  capable  of  binding  himself,  and 
is,  moreover,  able  to  pay  such  costs.  The  undertaking  on  the 
part  of  the  guardian,  is  wholly  voluntary,  and  the  statute  re- 
quires that  his  written  consent  should  be  given.  (2  R.  S.,  2d 
ed.,  164,  sec.  40.) 

FORM    OF    CONSENT. 

Queens  County,  ss. — At  the  request  of  Peter  Pray,  who  is 
under  the  age  of  twenty-one  years,  I  hereby  consent  to  stand 
as  his  guardian  in  the  prosecution  of  a  suit  upon  a  promissory 
note,  (or  as  the  case  may  be,)  against  James  Smith,  before 
Robert  Doyle,  one  of  the  Justices  of  the  Peace  of  Hempstead, 
county  aforesaid.  And  I  do  hereby,  for  value  received,  promise 
the  said  James  Smith  to  pay  him  such  costs  as  he  shall  recover 
against  the  said  Peter  Pray,  in  the  said  suit.  Dated  May  3d, 
1849.  William  Tracy. 

If  the  guardian  for  the  plaintiff  be  appointed  in  a  suit  insti- 
tuted without  j)rocess,  the  consent  should  be  entitled  thus  : 

In  Justices'  Court,  before  Robert  Doyle,  Justioe. 
Peter  Pray      ) 
against  > 

James  Smith.     3 

iiueens  County,  ss. — I  hereby  consent  to  act  as  guardian  for 
Peter  Pray,  plaintiff  in  the  above  entitled  cause,  who  is  under 
the  age  of  twenty-one  years.  And  I  hereby,  for  value  received, 
promise  and  agree  with  James  Smith,  the  above  named  defend- 
ant, to  pay  liiin  such  costs  as  he  shall  recover  against  the  said 
Peter  Pray  by  judgment  in  this  suit.     Dated  May  3d,  1819. 

William  Tracy. 


APPEARANCE  OF  THE  PARTIES.  79 

Tlie  mere  declaration  of  the  plaintiff  that  he  is  an  infant,  is 
enough  to  authorize  the  appointment  of  a  guardian  ;  and,  if  it 
should  turn  out  that  he  was  of  full  age,  still,  there  would  be  no 
irregularity,  for  the  Justice's  decision  as  to  that  matter,  would 
be  held  conclusive.     (3  J.  R.  437.) 

When  the  defendant  is  under  the  age  of  twenty-one  years, 
process  may  be  issued  against  him  as  in  other  cases  ;  (8  J.  R. 
418 ;)  but  after  the  service  and  return  of  the  process,  no  further 
proceedhigs  can  be  had  in  the  suit,  until  a  guardian  for  such 
defendant  is  appointed.     (2  R.  8.-,  2d  ed.,  164,  sec.  42.) 

Upon  the  request  of  the  defendant,  if  he  be  of  the  age  of 
fourteen  years,  and  appear  on  the  return  day  of  process,  the 
Justice  shall  appoint  some  person,  who  will  consent  thereto  in 
writing,  to  be  the  guardian  of  the  defendant,  in  defence  of  the 
suit.  If  the  defendant  be  under  the  age  of  fourteen  years,  or 
do  not  appear  on  the  return  day  of  process,  or  if  he  neglect  or 
refuse  to  nominate  such  guardian  ;  then  the  Justice  may,  upon 
the  petition  of  any  other  party  to  the  action,  or  of  a  relative,  or 
friend  of  the  infant,  or  on  motion  of  the  plaintiff,  appoint  any 
discreet  person  as  such  guardian.  (Code,  sec.  116.  2  R.  S.  164, 
sec.  42.) 

FORM    OF    CONSENT. 

In  Justices^  Court,  before  Robert  Doyle,  Justice. 
John  Doe        ^ 
against         \ 
Richard  Roe.    j 
Queens  County,  ss. — At  the  request  of  the  defendant,  who  is 
under  the  age  of  twenty-one  years.  I  hereby  consent  to  stand  as 
his  guardian  to  defend  this  suit. 

Thomas  Nokes* 

The  consent  of  the  guardian  must  be  filed  with  the  Justice. 
The  guardian  of  the  defendant  is  not  liable  for  costs.  (2  R.  S. 
164,  sec.  43.) 


CHAPTER    V. 

OF    THE    PLEADINGS    IN    A    SUIT. 

This  chapter  comprises  the  following  subjects  : 

1.  Definition  of  pleading. 

2.  General  rules  of  pleading. 

3.  At  what  time  parties  must  plead. 

4.  Nature  of  pleadings  in  a  Justice's  Court,  and  the  kinds 
thereof. 

6.  Statement  of  the  cause  of  action. 

6.  Variance. 

7.  Amendment  of  pleadings. 

8.  Of  various  defences  ; — infancy,  lunacy,  &c. ;  tender  ;  stat- 
ute of  limitations  ;  set  oif;  former  recovery  ;  question  of  title. 

By  pleading  is  not  meant  the  arguing  or  advocating  the  cause 
before  the  court ;  but  a  brief  statement  by  the  parties,  of  the  facts 
which  constitute  the  plaintiff's  cause  of  action,  or  the  defen- 
dant's ground  of  defence.  (1  Chitt.  PL  244.) 
K.The  general  aim  of  the  parties,  in  their  pleading  or  state- 
ment, is  so  to  manage  their  alternate  allegations  as  at  length  to 
arrive  at  some  sjyecific  point  or  matter  affirmed  on  one  side,  and 
denied  on  the  other.  The  pleadings  are  so  conducted  as  always 
to  develops  some  question  disputed  between  the  parties,  and 
mutually  proposed  and  accepted  by  them,  as  the  subject  for  de- 
cision. The  question  so  produced  is  called  the  issue,  being  the 
end  (e:ri^i<5)  of  the  pleading.     (Steph.  PI.  124.) 

General  Rules. 

Whatever  circumstances  are  necessary  to  constitute  the  cause 
of  complaint  or  the  ground  of  defence,  must  be  stated  in  the 
pleadings,  and  all  beyond  is  snr])lusage.  Facts  only  arc  to  be 
stated,  and  not  arguments,  or  inferences,  or  matters  of  law.  (I 
Chitt.  PI.  217.) 

No  fact  that  is  not  essential  to  substantiate  the  pleading, 
should  be  stated.     The  statement  of  immaterial  or  irrelevant 


OF  THE  PLEADINGS  IN  A  SUIT.  81 

matter  is  censnrable,  as  rendering  it  incumbent  on  the  party- 
pleading  to  adduce  more  evidence  than  would  otherwise  have 
been  necessary.     (Id.  231.) 

Matter  which  should  come  more  properly  from  the  other  side, 
as  it  is  presumed  to  lie  more  within  the  knowledge  of  the  other 
party,  or  is  an  answer  to  the  charge  of  the  party  pleading,  need 
not  be  stated.  But  this  rule  should  be  acted  upon  with  caution  ; 
for  if  the  fact  in  any  way  constitutes  a  condition  precedent,  to 
enable  the  party  to  avail  himself  of  the  charge  stated  in  his 
pleading,  such  fact  should  be  stated.  (11  East,  638.    1  Chitt.  226.) 

When  the  law  presumes  a  fact,  it  need  not  be  stated.  As, 
therefore,  it  is  an  intendment  of  law  that  a  person  is  innocent  of 
fraud,  or  any  other  imputation  affecting  his  reputation,  the  party 
insisting  upon  the  contrary  must  state  it  in  pleading.  So  also, 
when  any  act  is  required  to  be  done  by  a  person,  the  omission 
of  which  would  make  him  guilty  of  a  criminal  neglect  of  duty, 
the  law  presumes  the  affirmative,  and  throws  the  burthen  of 
proving  the  negative  on  the  party  who  insists  on  it.  But  great 
care  must  be  taken  in  the  application  of  this  rule,  to  ascertain 
that  the  law  intends  the  fact  proposed  to  be  omitted.  For  in- 
stance, if  the  defendant  should  plead  that  another  person  pro- 
mised to  be  answerable  to  the  plaintiff  for  the  debt  in  lieu  of  the 
defendant,  as  the  law  does  not  presume  the  validity  of  the  pro- 
mise, it  must  be  shown  to  have  been  in  writing,  pursuant  to  the 
Statute  of  Frauds,  so  that  it  may  appear  to  be  such  a  contract 
as  the  plaintiff  could  enforce.     (1  Chitt.  226.) 

The  principal  rule  as  to  the  mode  of  stating  the  facts,  is,  that 
they  must  be  set  forth  with  certainty  ;  that  is,  there  must  be  a 
clear  and  distinct  statement  of  the  facts  which  constitute  the 
cause  of  action  or  ground  of  defence.  Less  certainty  is  requi- 
site when  the  law  presumes  that  the  knowledge  of  the  facts  is 
in  the  opposite  party  ;  because  the  principal  object  of  pleading  is 
to  state  facts  of  which  the  other  part3r  is  not  supposed  to  be  cog- 
nizant. So  less  certainty  is  required  where  it  is  to  be  presumed 
that  the  part)^  pleading  is  not  privy  to  the  minute  circumstan- 
ces.    (Id.  236-239.) 

In  the  construction  of  facts  stated,  it  is  a  general  rule  that 
everything  shall  be  taken  most  strongly  against  the  party  plead- 
ing ;  for  it  is  to  be  supposed  that  every  person  states  his  case  as 
favorably  to  himself  as  possible.  (1  Saund.  259.)  Where  an 
expression  in  pleading  is  capable  of  different  meanings,  that 

6 


QI2  OF  THE  PLEADINGS  IN  A  SUIT. 

must  be  taken  which  will  support  the  statement,  and  not  the 
other  Avhich  would  defeat  it.     (4  Taunt.  492.     5  East,  257.) 

The  pleadings  are  to  be  liberally  construed,  with  a  view  to 
substantial  justice  between  the  parties.  (Code,  sec.  159.)  They 
are  not  required  to  be  in  any  particular  form,  provided  they  are 
such  as  to  enable  a  person  of  common  understanding  to  know 
what  is  intended,  (Code,  sec.  64.)  In  an  action  or  de- 
fence founded  upon  an  account  or  an  instrument  for  the  pay- 
ment of  money  only,  it  will  be  sufficient  for  a  party  to  deliver 
the  account  or  instrument  to  the  court,  and  to  state  that  there  is 
due  to  him  thereon,  from  the  adverse  party  a  specified  sum  which 
he  claims  to  recover  or  set  off.  (Id.)  Every  variance  between 
the  proof  on  the  trial  and  the  allegations  in  a  pleading,  must  be 
disregarded  as  immaterial,  unless  the  court  is  satisfied  that  the 
adverse  party  has  been  misled  to  his  prejudice  thereby.  (Code, 
sec.  64.) 

In  pleading  the  performance  of  conditions  precedent  in  a  con- 
tract, it  is  not  necessary  to  state  the  facts  showing  such  per- 
formance ;  but  it  may  be  stated  generally  that  the  party  duly 
performed  all  the  conditions  on  his  part ;  and  if  such  allegation 
is  controverted,  the  party  pleading  must  establish,  on  the  trial, 
the  facts  showing  such  performance.     (Code,  sec.  162.) 

In  pleading  a  judgment  or  other  determination  of  a  court  or 
officer  of  special  jurisdiction,  it  is  not  necessary  to  state  the  facts 
conferring  jurisdiction  ;  but  such  judgment  or  determination  may 
be  stated  to  have  been  duly  given  or  made.  If  such  allegation 
is  controverted,  the  party  pleading  is  bound  to  establish,  on  the 
trial,  the  facts  conferring  jurisdiction.     (Id.  161.) 

In  pleading  a  private  statute  or  a  right  derived  therefrom,  it 
will  be  sufficient  to  refer  to  it  by  its  title,  and  the  day  of  its  pas- 
sage, and  the  court  must  thereupon  take  judicial  notice  of  it.  (Id. 
163.) 

The  general  issue,  or  absolute  and  general  denial  of  the  com- 
plaint, or  some  portion  of  it,  though  not  permitted  in  courts  of 
record,  has  been  restored  to  Justices'  Courts  by  the  amended 
Code.  (Code,  sec.  64.)  It  is  llie  shortest,  simplest,  and  most 
coniprolicnsive  mode  of  denial ;  and  when  it  applies  to  the 
whole  complaint,  brings  the  pleadings  at  once  to  an  issue.  An 
imijoitanl  advantage  attending  it  is,  that  the  defendant  is  permit- 
ted to  give  the  matters  of  his  defence  in  evidence  under  it  on  the 
trial,  by  merely  giving  notice  to  the  plaintiff  of  the  facts  consti- 


OF  THE  PLEADINGS  IN  A  SUIT.  §3 

tilting  his  defence  ;  thus  enjoying  all  the  advantages  of  a  special 
plea,  without  being  subjected  to  the  strict  rules  and  minute  dis- 
tinctions of  special  pleading. 


At  the  time  of  the  first  appearance  of  the  parties  before  the 
Justice,  which  we  have  seen,  must  be  on  the  return  day  of  pro- 
cess— or,  if  the  parties  appear  voluntarily,  at  the  time  of  their 
presenting  themselves  before  the  Justice  ;  an  issue  must  be 
joined  before  any  adjournment  can  be  had.  (2  R.  S.  2d  ed.  165. 
sec.  47.)  When,  however,  the  defendant,  though  present,  re- 
fuses or  neglects  to  plead,  the  plaintiff  may  still  adjourn  the  suit 
by  showing  good  cause. 

Jt  has  been  held  by  the  Supreme  Court,  that  on  the  return  of 
a  summons  or  attachment,  notwithstanding  the  hour  for  the  ap- 
pearance of  the  parties  has  expired,  the  defendant  is  still  enti- 
tled to  plead  and  make  his  defence,  if  he  appear  before  the  Jus- 
tice has  entered  upon  the  trial  of  the  cause,  by  an  examination 
of  a  witness  or  the  hearing  of  any  other  testimony ;  and  the 
Justice  has  no  authority,  under  such  circumstances,  to  enter  his 
default  for  not  appearing  at  the  expiration  of  the  hour.  (15  J. 
R.  86.) 

It  was  subsequently  held  that  it  would,  be  proper  in  all  cases 
to  permit  a  defendant  to  plead,  if  he  appear  on  the  return  day 
of  process,  before  the  cause  is  adjourned,  or  after  adjournment, 
if  the  plaintiff  is  in  court ;  and  if  the  plaintiff  proceed  to  a  hear- 
ing of  his  cause  on  the  return  day  of  the  process,  the  defendant 
ought  to  be  permitted  to  plead,  if  he  appear  before  the  plaintiff 
has  closed  his  case.     (12  AVend.  150.) 

The  question  how  far  a  defendant  should  be  permitted  to 
make  his  defence  at  an  adjourned  day^  when  he  did  not  appear 
at  the  return  of  process,  has  been  passed  upon  in  several  in- 
stances. The  decisions  seem,  however,  to  be  conflicting.  In 
one  case  it  was  said  it  would  be  too  late  for  the  defendant  to  be 
admitted  to  plead,  and  that  he  should  be  allowed  only  to  give 
evidence  in  mitigation  of  damages.  (11  J.  R.  69.)  In  another 
case,  where  the  defendant  omitted  to  appear  at  the  return  of  a 
summons  personally  served,  the  Supreme  Court  decided  that 
the  defendant  should  have  been  permitted  to  appear  and  plead 
at  the  adjourned  day,  on  paying  the  costs  of  the  adjournment 
and  subsequent  proceedings.     (8  Cow.  R.  87.)     In  a  still  later 


84  OF  THE  PLEADINGS  IN  A  SUIT. 

case,  the  Supreme  Court  recognized  and  confirmed  the  decision 
in  8th  Cowen  above  cited,  so  far  as  relates  to  the  right  of  the 
defendant  to  plead  at  the  adjourned  day,  when  he  did  not  appear 
on  the  return  of  process.  (1  Wend.  143.)  Subsequently  the 
same  court  held  that  if  the  defendant  did  not  appear  on  the  re- 
turn of  the  summons  and  join  issue,  and  the  cause  was  ad- 
journed, he  would  not  be  entitled,  on  the  adjourned  day,  to  plead 
and  enter  upon  his  defence  ;  and  the  authority  of  previous  de- 
cisions was  doubted.     (12  Wend.  150.) 


The  pleadings  in  a  Justices'  Court  may  be  either  verbal  or 
written,  at  the  discretion  of  the  party  making  the  same,  except 
in  the  case  of  a  plea  of  title  to  land.  (Code,  sec.  64.  2  R.  S.  2d 
ed.  165,  sec.  48.)  Where  the  parties  managing  a  suit  are  unac- 
quainted with  forms  of  pleading,  it  is  much  safer  and  easier  for 
them  to  make  their  statements  verbally.  When  the  pleadings 
are  verbal,  the  Justice  is  required  to  enter  the  substance  of  them 
in  his  docket.  (Code,  sec.  64.)  By  this  we  are  to  understand, 
not  that  every  allegation  of  the  parties  must  necessarily  be  en- 
tered, but  only  such  essential  statements  as  are  necessary  to  con- 
stitute the  cause  of  complaint  or  the  ground  of  defence.  If  the 
pleadings  are  in  writing,  they  are  required  to  be  filed  by  the 
Justice,  and  a  reference  made  to  them  in  his  docket.     (Id.) 

When  the  pleadings  are  verbal,  they  need  not  be  communi- 
cated inform.  But  the  facts  constituting  the  cause  of  action  or 
ground  of  defence,  should  be  stated  in  clear  and  intelligible  lan- 
guage, so  that  a  person  of  common  understanding  may  know 
what  is  intended.  This  mode  of  pleading  is  now  required  in 
all  the  courts.  (Code,  sec.  142.)  It  is  especially  applicable  to 
courts  of  Justices  of  the  Peace,  in  which  parties  who  are  unac- 
quainted with  the  tcclmicalitios  of  the  law,  usually  manage  their 
own  suits.  It  is  highly  important  to  use  so  much  particularity 
as  may  be  necessary  to  apprise  plaintiff  and  defendant  of  the 
points  to  be  controverted,  and  thus  give  them  a  fair  opportunity 
to  prepare  for  trial. 

The  pleadings  in  a  Justices'  Court  are  : — (Code,  sec.  64.) 

1.  Tlie  complaint  by  the  plaintifl'; 

2.  The  answer  by  the  defendant. 


OF  THE  PLEADINGS  IN  A  SUIT.  gS 

Comjjlaint. 

The  first  step  in  the  pleadings  is  the  complaint  which  is  a 
statement,  either  verbal  or  written  in  a  plain  and  direct  manner, 
of  the  facts  constituting  the  plaintiff's  cause  of  action.  The 
complaint,  if  in  writing,  should  contain — 

1.  The  title  of  the  cause,  specifying  the  Justice  before  whom 
it  is  to  be  tried,  and  the  names  of  the  parties  to  the  action,  plain- 
tiff and  defendant. 

2.  A  statement  of  the  facts  constituting  the  cause  of  action 
in  ordinary  and  concise  language,  without  repetition,  and  in 
such  manner  as  to  enable  a  person  of  common  understanding 
to  know  what  is  intended. 

3.  A  demand  of  the  relief  to  which  the  plaintiff  supposes 
himself  to  be  entitled.  If  the  recovery  of  money  is  sought,  the 
amount  claimed  should  be  stated. 

FORM    OF    A    COMPLAINT. 

In  Justices'  Court,  before  David  Long,  Justice, 
John  Doe        \ 
against  \  Complaitit. 

Richard  Roe.    ) 

John  Doe,  plaintiff  in  this  suit,  complains  of  Richard  Roe, 
defendant,  that  the  said  defendant,  on  or  about  the  last  day  of 
May,  eighteen  hundred  and  forty-nine,  rented  of  plaintiff  a 
house  and  lot,  at  the  corner  of  Broad  and  Water  streets,  in  the 
village  of  Oxford,  for  one  year  from  the  first  of  June  next  fol- 
lowing— for  which  said  defendant  agreed  to  pay  plaintiff  one 
hundred  dollars. 

Plaintiff  further  says  the  above  named  defendant  occupied 
the  said  premises  one  year  from  the  first  of  June,  eighteen  hun- 
dred and  forty-nine,  pursuant  to  his  agreement  as  aforesaid,  and 
that  he  has  not  paid  plaintiff  the  one  hundred  dollars  he  agreed 
to  pay  him,  or  any  part  of  the  same.  Wherefore  the  plaintiff 
demands  judgment  against  the  defendant  for  one  hundred 
dollars. 

John  Doe. 

The  foregoing  is  a  complaint  in  forTu.  If  the  complaint  is 
made  verbally,  as  is  most  usually  the  case,  it  need  not,  as  al- 


86  OF  THE  PLEA.DINGS  IN  A  SUIT. 

ready  stated,  be  in  form.  Care,  however,  should  be  taken  to 
allege  all  the  circumstances  necessary  for  the  support  of  the  ac- 
tion, and  to  give  a  full  statement  of  the  injury  which  the  plain- 
tiff has  sustained,  with  the  time  and  place,  and  other  circum- 
stances, with  such  precision,  clearness  and  certainty,  that  the 
defendant,  knowing  what  he  is  called  upon  to  defend,  maybe  able 
to  plead  a  direct  and  unequivocal  answer  ;  or  that  the  jury  may 
be  enabled  to  give  a  complete  verdict  upon  the  issue ;  or  that 
the  court,  consistently  with  the  rules  of  law,  may  give  a  certain 
and  direct  judgment  in  the  premises. 

Thus  the  plaintiff,  in  making  a  complaint  upon  a  written  con- 
tract, should  exhibit  the  writing,  giving  at  the  same  time  any 
necessary  explanation,  and  particularly  stating  the  breaches  of 
the  agreement  for  which  he  claims  damages.  In  complaining 
on  matters  of  account,  a  copy  of  the  account,  with  the  proper 
dates,  may  be  handed  to  the  Justice  for  the  complaint,  who  will 
thereupon  file  it.  In  complaining  for  iDro?igs,  a  plain  statement 
of  facts  should  be  made.  And  in  all  cases,  a  representation  of 
such  matters  as  the  plaintiff  expects  to  prove,  and  which,  if 
proved,  will  exhibit  a  legal  cause  of  action,  will  be  a  sufficient 
complaint. 

The  complaint  should  not  join  different  causes  of  action,  nor 
the  same  causes  of  action,  unless  they  affect  equally  all  the 
parties  to  the  action,  and  require  the  same  place  of  trial.  (Code, 
sec.  167.) 

With  the  foregoing  exception,  in  a  Justices'  Court,  several 
causes  of  action  may  be  united  in  the  same  complaint,  when 
they  belong  to  one  of  the  following  classes  : — 

1.  Actions  on  contract,  express  or  implied,  whether  the  con- 
tract be  under  seal,  or  written  without  seal,  or  merely  by  parol. 

2.  Injuries  with  force  or  without  force  to  the  person. 

3.  Injuries  with  force  or  without  force  to  property,  whether 
the  property  be  real  or  personal. 

4.  Claims  against  a  trustee  by  virtue  of  a  contract,  or  by  ope- 
ration of  law. 

5.  vVctioris  for  a  penalty  given  by  statute,  arising  on  several 
like  violations  of  the  same  statute. 

Where  time  and  j)lace  are  mere  matter  of  form,  they  need  not 
be  stated  in  the  coni[)iaint,  as  no  advantage  can  be  taken  of  their 
omission.  If,  however,  time  and  place  are  material  to  the  cause 
of  action,  it  is  not  only  necessary  to  state  them,  but  to  sot  them 


OF  THE  PLEADINGS  IN  A  SUIT.  ^7 

forth  fully  and  truly.  Thus,  if  the  plaintiff  complain  that  the 
defendant  violated  a  contract  to  work  from  such  a  day  to  such 
a  day,  he  must  prove  it ;  and  so  of  any  other  special  contract. . 

In  the  statement  of  time,  it  is  advisable,  where  the  day  is  not 
material,  to  state  that  the  fact  occurred  on  or  about  such  a  day, 
unless  the  party  is  certain  as  to  the  particular  day. 

When  a  request  furnishes  the  consideration  of  the  promise 
alleged,  a  request,  or  something  equivalent  to  it,  should  be 
stated  in  the  complaint.  As  when  the  plaintiff  claims  for  ser- 
vices rendered  for  the  defendant,  it  should  appear  from  the  com- 
plaint, that  they  were  rendered  at  the  defendajifs  request.  But 
the  knowledge  of  a  beneficial  service,  and  an  assent  to  it  at  the 
time,  when  nothing  appears  to  show  that  it  was  designed  to  be 
gratuitous,  is  sufficient  proof  of  a  request.  And  the  allegation 
showing  the  service  to  have  been  so  rendered,  is  sufficient, 
without  alleging  the  request ;  because  in  such  case,  the  law 
implies  both  the  request  and  promise  to  pay.  (Hayden  Appen. 
sec.  131.)  So  also,  in  the  case  of  all  executory  contracts,  and 
of  all  instances  of  sale  on  deposit,  lending  or  other  bailment  of 
goods,  this  assent  appears  from  the  transaction,  and  therefore  it 
is  not  necessary  specially  to  allege  a  request.     (Id.) 

If  upon  the  trial,  it  appears  that  there  is  a  variance  between 
the  facts  proved  and  the  complaint,  the  plaintiff 's  right  to  re- 
cover will  not  be  affected,  unless  such  variance  amount  to  a 
failure  of  proof  The  variance  must,  with  this  exception,  in  all 
cases  be  disregarded  by  the  Justice  as  immaterial,  unless  he  is 
satisfied  that  the  adverse  party  has  been  misled  by  it  to  his 
prejudice.     (Code,  sec.  171.     Id.  sec.  64.) 

If  the  variance  is  not  material,  the  Justice  may  direct  the 
fact  to  be  found  according  to  the  evidence,  or  may  make  an 
immediate  amendment. 

If  the  variance  is  material,  the  test  of  which  is  that  it  has 
actually  misled  the  adverse  party  to  his  prejudice,  of  which  the 
Justice  must  be  satisfied,  he  may  amend  the  complaint  upon 
such  terms  as  shall  be  just. 

A^iswer. 

When  the  plaintiff  has  stated  his  case  in  the  complaint,  it  is 
incumbent  on  the  defendant  to  make  his  defence ;  otherwise, 
the  plaintiff  upon  proving  his  allegations,  will  at  once  recover 


38  OF  THE  PLEADINGS  IN  A  SUIT. 

judgment.  Defence  in  its  legal  sense  signifies  an  opposing  or 
denial  of  the  truth  or  validity  of  the  complaint,  (3  Blk.  Com. 
297.)    This  denial  is  made  by  answer.     (Code,  sec.  64.) 

The  answer  of  the  defendant  may  contain  a  denial  of  the 
complaint,  or  any  part  thereof,  and  also  notice  in  a  plain  and 
direct  manner  of  any  facts  constituting  a  defence.  (Code, 
sec.  64.) 

The  answer,  if  in  writing,  should  contain  : 

1.  The  title  of  the  cause,  specifying  the  Justice  before  whom 
it  is  to  be  tried,  and  the  names  of  the  parties  to  the  action, 
plaintiff  and  defendant. 

2.  A  denial  of  the  complaint,  or  some  part  thereof. 

3.  Notice  of  the  facts  constituting  the  defence,  in  ordinary 
and  concise  language,  without  repetition. 

FORM    OF    ANSWER. 

In  Justices'  Courts  before  David  Long,  Justice. 
John  Doe        n 
against  >  Ansiver. 

Richard  Roe.    ' 

Richard  Roe,  defendant  in  this  suit,  in  answer  to  plaintiff's 
complaint,  denies  each  and  every  the  allegations  therein  made. 

The  above  named  defendant  furthermore,  in  this  his  said 
answer,  gives  notice,  that  he  will  prove  on  the  trial  of  said 
cause,  the  following  facts,  which  constitutes  his  defence,  to  wit: 
1.  It  was  agreed  by  and  between  plaintiff  and  defendant,  that 
defendant  should  occupy  the  house  and  lot  mentioned  and  de- 
scribed in  the  complaint,  for  a  year,  for  eighty-five  dollars  ;  2. 
It  was  agreed  by  and  between  plaintiff  and  defendant,  on  or 
about  the  last  day  of  May,  eighteen  hundred  and  forty-nine, 
that  defendant  should  cause  to  be  erected  at  his  own  expense, 
in  front  of  the  said  house,  a  picket  fence,  for  which  defendant 
was  to  be  allowed  by  plaintiff  twenty-five  dollars,  to  be  de- 
ducted from  the  rent  of  the  aforesaid  house  and  lot ;  3.  Defend- 
ant caused  the  aforesaid  fence  to  bo  erected  pursuant  to  the 
said  agreement;  4.  Defendant,  for  the  reasons  above  stated,  is 
only  indebted  to  the  j)laintifr  in  the  sum  of  sixty  dollars — wliich 
sum  of  sixty  dollars,  he  has  repeatedly  tendered  the  defendant, 
who  has  at  all  limes  refused  to  receive  the  same. 

Richard  Roe. 


OF  THE  PLEADINGS  IN  A  SUIT.  QQ 

The  defendant  may  set  up  by  notice  in  his  answer,  as  many 
grounds  of  defence  as  he  shall  have.  They  should  be  sepa- 
rately stated,  and  intelligibly  refer  to  the  parts  of  the  complaint 
they  are  intended  to  controvert. 

The  language  of  the  Code  is,  that  the  defendant  may  "  Give 
notice  in  a  plain  and  direct  manner,  of  any  facts  constituting  a 
defence."     (Code,  sec.  64.) 

The  following  grounds  of  demurrer  in  courts  of  record,  can 
only  be  taken  advantage  of  in  Justices'  Courts,  by  answer  : 

1.  That  the  court  has  no  jurisdiction  of  the  person  of  the  de- 
fendant, or  the  subject  of  the  action. 

2.  That  the  plaintiff  has  not  the  legal  capacity  to  sue. 

3.  That  there  is  another  action  pending  between  the  same 
parties  for  the  same  cause. 

4.  That  there  is  a  defect  of  parties,  plaintiff  or  defendant. 

5.  That  several  causes  of  action  have  been  improperly  united. 
Whether  the  defendant  do,  or  do  not,  dispute  the  whole  or 

parts  of  the  complaint,  he  may  in  his  answer,  set  up  any  new 
matter  constituting  a  defence.  Such  new  matter  must  be  stated 
in  ordinary  and  concise  language  without  repetition,  and  in 
such  a  manner  as  to  enable  a  person  of  common  understanding 
to  know  what  is  intended.  It  will,  of  course,  be  set  forth  in 
the  notice. 

If  the  answer  contain  new  matter  that  is  true  in  fact,  but 
insufficient  in  law  to  defeat  the  action,  the  issue  will  be  what 
was  formerly  a  demurrer  to  the  jilea.  If  decided  in  favor  of 
the  plaintiff,  the  Justice  may  permit  the  defendant  to  amend. 

Demurrer. 

In  preparing  for  trial,  the  first  thing  to  be  considered  is 
whether  on  the  face  of  the  pleadings,  and  supposing  the  facts 
to  be  true  as  stated,  the  parties  appear  in  j)oint  of  laio  to  have 
a  cause  of  action  or  defence.  If  it  appear  that  either  party  has 
no  cause  of  action  or  defence  in  point  of  law,  and  this  by  defect 
of  the  pleading  in  substance,  the  opposite  party  is  permitted  to 
except  to  the  pleading  on  such  ground.  In  so  doing,  he  is  said 
to  dem/ur ;  and  this  kind  of  objection  is  called  a  deinurrer. 
(Code,  sec.  64.) 

Either  party  may  also  demur  to  the  pleading  of  his  adversary, 
when  it  is  not  sufficiently  explicit  to  enable  him  to  understand 
it.     (Id.) 


90  OF  THE  PLEADINGS  IN  A  SUIT. 

FORM    OF    DEMURRER. 

In  Justices'  Court,  before  David  Long,  Justice. 
John  Doe  t 

against  \  Demurrer. 

Richard  Roe.      ) 

Richard  Roe,  defendant  in  this  cause,  says,  that  plaintiff's 
complaint  is  insufficient  in  law  to  maintain  his  action,  and 
assigns  the  following  reason*:  That  it  does  not  appear  on  the 
face  of  the  complaint,  that  there  was  ever  any  consideration  for 
the  verbal  promise  alleged  to  have  been  made  by  defendant  to 
plaintiff. 

Richard  Roe, 

another  form. 

In  Justices'  Court,  before  David  Long,  Justice. 
John  Doe  ^ 

against  \  Demurrer. 

Richard  Roe.       j 

John  Doe,  plaintiff  in  this  cause,  says,  that  defendant's  an- 
swer is  insufficient  in  law  to  maintain  his  defence,  and  assigns 
the  following  reason  :  That  the  parol  agreement  which  defend- 
ant sets  up,  is  prior  to  the  agreement  contained  in  the  sealed 
instrument  on  which  this  action  is  founded,  and  which  it  at- 
tempts to  vary. 

John  Doe. 

The  above  forms  may  be  readily  adapted  to  the  case  of  de- 
murrer, on  the  ground  that  the  pleadings  of  the  party's  adver- 
sary are  not  sufficiently  explicit  to  enable  the  party  to  under- 
stand them. 

When  the  plaintiff  is  ignorant  of  the  name  of  a  defendant, 
such  defendant  may  be  designated  in  any  pleading  or  proceed- 
ing l)y  any  name ;  and  when  his  true  name  is  discovered,  the 
pleading  or  proceeding  may  be  amended  accordingly.  (Code, 
sec.  175.) 

Tlio  Justice  is  required,  in  every  stage  of  an  action,  to  disre- 
gard any  error  or  defects  in  the  pleadings  or  proceedings  which 
does  not  affect  the  substantial  rights  of  the  adverse  party. 
(Sec.  17G.) 

The  court  may,  at  ibc;  joining  of  issue,  require  either  party, 


OF  THE  PLEADINGS  IN  A  SUIT,  91 

at  the  request  of  the  other,  at  that,  or  some  other  specified  time, 
to  exhibit  his  account  on  demand  or  state  the  nature  thereof,  as 
far  forth  as  may  be  in  his  power ;  and  in  case  of  his  default,  pre- 
chide  him  from  giving  evidence  of  such  parts  thereof  as  shall 
not  have  been  so  exhibited  or  stated.     (Vide  Code,  sec.  64.) 

The  pleadings  may  be  amended  at  any  time  before  the  trial 
during  the  trial,  or  upon  appeal,  to  supply  way  deficiency  or 
omission  in  the  allegations  necessary  to  support  the  action  or 
defence,  when  by  such  amendment  substantial  justice  will  be 
promoted.  If  the  amendment  is  made  after  the  joining  of  issue, 
and  it  is  made  to  appear  to  the  satisfaction  of  the  court,  by 
oath,  that  an  adjournment  is  necessary  to  the  adverse  party  in 
consequence  of  such  amendment,  an  adjournment  must  be 
granted.  The  Justice  may  also,  in  his  discretion,  require  as  a 
condition  of  the  amendment,  the  payment  of  costs  to  the  ad- 
verse party,  to  be  fixed  by  the  Justice.  But  no  amendment  can 
be  allowed  after  a  witness  is  sworn  on  a  trial,  when  an  adjourn- 
ment thereby  will  be  made  necessary.     (Code,  sec.  64.) 

Of  Various   Defences. 

Infancy,  Lunacy,  ^c. 

Any  person  under  twenty-one  years  of  age  is  an  infant.  All 
the  contracts  which  an  infant  can  make,  with  very  few  excep- 
tions, are  voidable,  and  he  may  affirm  or  disaffirm  them  at  plea- 
sure. (7  Cow.  181.)  It  has  been  said  that  the  acts  of  infants 
which  are  capable  of  being  legally  ratified,  are  voidable  only ; 
and  acts  which  are  incapable  of  being  legally  ratified,  are  ab- 
solutely void.  (Bingham  on  Infancy,  33.)  Another  and  better 
test,  as  to  whether  the  contracts  of  an  infant  are  void  or  voida- 
ble, is  that  when  the  court  can  pronounce  the  contract  to  be  to 
the  infant's  prejudice,  it  is  void  ;  and  when  to  his  benefit,  as  for 
necessaries,  it  is  good ;  and  when  the  contract  is  of  an  uncer- 
tain nature,  as  to  benefit  or  prejudice,  it  is  voidable  only  at  the 
election  of  the  infant.     (2  Kent,  237.) 

If  any  act  of  confirmation  be  requisite,  after  he  comes  of  age, 
to  give  binding  force  to  a  voidable  act  of  his  infancy,  slight  acts 
and  circumstances  will  be  a  ground  from  which  to  infer  the 
assent ;  and  it  will  depend  upon  circumstances,  such  as  the  na- 
ture of  the  contract,  and  the  situation  of  the  infant,  whether 


92  OF  THE  PLEADINGS  IN  A  SUIT. 

any  overt  act  of  assent  or  dissent,  on  his  part,  be  requisite  to 
determine  the  fact  of  his  future  responsibility.     (Id.  239.) 

When  an  infant  makes  a  contract  with  a  person  of  full  age, 
the  contract,  although  voidable  as  to  the  infant,  is  still  binding 
upon  the  adult,  so  long  as  it  remains  executory,  and  is  not  re- 
scinded by  the  infant.  (7  Cow.  23.)  It  is  also  a  general  rule 
that  no  one  but  the  infant  himself,  or  his  legal  representatives, 
can  avoid  his  voidable  deed  or  contract.  (2  J.  R,  279.  13 
Mass.  R.  237.) 

But  although  the  executory  contracts  of  an  infant  are  void- 
able, yet  when  he  does  work,  or  pays  money  upon  his  contracts, 
he  cannot  recover  back  his  money,  nor  recover  a  compensation 
for  his  work,  on  the  ground  of  his  infancy.  The  law  will  only 
relieve  him  from  that  part  of  the  contract  which  remains  unex- 
ecuted. (8  Cow.  84.)  Where  a  contract  has  been  executed  by 
the  payment  of  money  to  the  infant,  if  the  infant  wishes  to 
avoid  the  contract,  he  must  restore  the  money.     (7  Cow.  182.) 

The  law  in  relation  to  infants  is  intended  to  furnish  protec- 
tion to  the  minor,  and  not  to  be  used  as  a  means  of  fraud  and 
oppression  upon  others.  Therefore,  where  an  infant  takes  a 
deed  of  land,  and  gives  back  a  mortgage  to  secure  the  purchase 
money,  he  cannot  avoid  the  mortgage,  and  hold  under  the  deed. 
(1  N.  H.  R.  37.)  Where  also  goods  are  sold  to  an  infant,  and  he 
avails  himself  of  his  infancy  to  avoid  the  payment,  the  vendor 
may  reclaim  the  goods,  as  having  never  parted  with  his  pro- 
perty in  them.  (15  Mass.  R.  3.59.)  If  an  infant  takes  an  es- 
tate, and  agrees  to  pay  rent,  he  cannot  protect  himself  from  the 
rent  by  pretence  of  infancy,  after  enjoying  the  estate  when  of 
age.  If  he  receives  rent,  he  cannot  demand  it  again  when  of 
age.  If  an  infant  pays  money  on  his  contract,  and  enjoys  the 
benefit  of  it,  and  then  avoids  it  when  he  comes  of  age,  he  can- 
not recover  back  the  consideration  paid.  (8  Taunt.  580.  8 
Cow.  84.) 

An  infant  may  have  money  or  other  property,  independently 
of  liis  fatiicr ;  and  the  father  may  so  far  emancipate  an  infant 
child,  as  to  allow  him  to  labor  for  others,  and  enjoy  his  own 
earnings.  (8  Cow.  85.  7  (/ovv.  03.)  In  either  of  these  cases, 
the  infant  may  maintain  an  action  to  recover  his  money,  pro- 
perty, or  a  compensation  for  his  labor,  cither  before  or  after  he 
arrives  at  full  ago.  Tlie  falh(;r  cannot,  however,  so  far  eman- 
cipate his  infant  child  a.s  to  render  the  contract  of  such  infant 


OF  THE  PLEADINGS  IN  A  SUIT.  93 

binding  upon  him.     His  contract  will  still  remain  voidable,  as 
before  such  emancipation. 

To  the  validity  of  an  infant's  contract  there  is  one  important 
exception.  A  fair  contract  made  for  necessaries,  is  binding  upon 
him.  This  exception  is  made  solely  for  the  benefit  of  the 
infant,  and  to  give  him  the  credit  which  his  necessities  require. 
The  infant  may  be  sued  and  charged  in  execution  on  such  a 
contract,  provided  the  articles  were  necessary  for  him  under  the 
circumstances  and  condition  in  which  he  was  placed. 

The  question  of  necessaries  is  governed  by  the  real  circum- 
stances of  the  infant,  and  not  by  his  ostensible  situation  ;  and 
therefore  they  who  trust  him  are  bound  to  make  due  inquiry ; 
and  if  the  infant  has  been  properly  supplied  by  his  friends,  they 
cannot  recover.  (2  Kent,  239.)  If  the  infant  lives  with  his 
father  or  guardian,  and  their  care  and  protection  are  duly  exer- 
cised, he  cannot  bind  himself  even  for  necessaries.  (4  J.  R. 
141.) 

It  is  understood  that  necessaries  for  the  infant's  wife  and  chil- 
dren, are  necessaries  for  him  ;  and  in  all  cases  of  contracts  for 
necessaries,  the  real  consideration  may  be  inquired  into.  The 
infant  is  not  bound  to  pay  for  the  articles  furnished  more  than 
they  were  really  worth  to  him  as  articles  of  necessity,  and  con- 
sequently he  may  not  be  bound  to  the  extent  of  his  contract ; 
nor  can  he  be  precluded,  by  the  form  of  the  contract,  from 
inquiring  into  the  real  value  of  the  necessaries  furnished.  (2 
Kent,  240.) 

An  infant  may  bind  himself  as  an  apprentice,  or  make  a  con- 
tract for  service  and  wages,  it  being  an  act  manifestly  for  his 
benefit ;  but  when  bound,  he  cannot  dissolve  the  relation.  (Id. 
242.) 

Infants  are  liable  for  wrongs  the  same  as  adults,  whether 
founded  on  positive  wrongs  or  constructive  torts  or  frauds.  (3 
Wend.  391.)  If,  therefore,  an  infant,  who  has  a  horse  on  hire, 
wilfully  and  intentionally  injure  the  animal,  it  amounts  to  an 
election  on  his  part,  to  disaffirm  the  contract  of  hiring,  and  an 
action  may  be  maintained  for  the  injury.  (2  Wend.  137.  3 
Pick.  Rep.  492.)  So  also,  if  he  hire  a  horse  to  go  in  one  direc- 
tion, and  go  in  another,  it  is  an  unlawful  conversion  of  the  horse, 
and  an  action  will  lie.  But  where  the  claim  arises  strictly  out 
of  a  contract,  upon  which  the  infant  would  not  be  liable,  the 
law  will  not  allow  the  plaintiff  to  vary  the  liability  of  the  infant 


94  OF  THE  PLEADINGS  IN  A  SUIT. 

by  changing  the  form  of  action  and  treating  the  breach  of  con- 
tract as  a  tort.  (Chitt.  on  Con.  151.)  If.  therefore,  an  infant 
hire  a  horse,  and  through  want  of  proper  care,  unintentionally 
injure  him,  the  owner  cannot  make  him  liable,  by  sueing  him 
for  a  tort,  because  he  was  guilty  of  no  tort.  (2  Wend.  R.  137.) 
If.  however,  the  claim  were  founded  in  tort,  infancy  would  be 
no  defence.  Thus,  where  an  infant  embezzled  money,  and  an 
action  was  brought  to  recover  the  money,  it  was  held  that  his 
infancy  could  not  be  pleaded  in  defence,  because  the  action  was 
really  founded  in  tort.     (1  Esp.  172.) 

Infancy  is  a  personal  privilege  which  no  one  but  the  infant 
can  take  advantage  of  When,  therefore,  an  infant  is  sued  with 
a  person  of  full  age,  the  latter  cannot  plead  the  infancy  of  his 
co-defendant.     (2  J.  R.  279.     7  Cow.  181.) 

A  lunatic  is  not,  as  a  general  rule,  considered  capable  of  ma- 
king a  valid  and  binding  contract ;  and  proof  that  he  was  out 
of  his  mind  when  the  contract  was  entered  into,  will  be  sufficient 
to  avoid  it.  (15  J.  R.  503.  11  Pick.  R.  304.)  But  evidence  of 
his  having  been  insane  previous  or  subsequent  to  the  contract, 
amounts  to  nothing,  provided  he  were  in  sound  mind  at  the  time 
of  contracting.  (Chitt.  on  Con.  140.)  A  lunatic  is  liable  for 
necessaries  and  other  goods  suitable  to  his  condition,  if  they 
were  enjoyed  by  him,  and  provided  fairly,  without  any  advan- 
tage having  been  taken  of  his  incapacity,     (Id.) 

An  intoxicated  person  who  is  in  such  a  state  as  to  be  deprived 
of  the  free  exercise  of  his  understanding  and  reasoning  powers, 
is  incapable  of  making  a  valid  contract ;  and  proof  that  he  was 
in  such  a  condition  when  he  entered  into  the  contract,  will  be  a 
good  defence  to  an  action  thereon.  (2  Aiken,  167.  3  Camp. 
Rep.  33.)  A  contract  made  by  one  in  a  state  of  intoxication,  is 
not  absolutely  void,  but  only  voidable,  and  if  he  affirm  it  when 
sober,  it  will  be  valid  and  binding.     (Id.) 

An  alien  may  make  a  valid  contract  with  a  citizen  at  all  times, 
excepting  when  his  country  is  at  war  with  the  country  of  which 
the  other  party  is  a  citizen.  Daring  a  war,  his  right  to  sue  upon 
a  contract  entered  into  in  time  of  peace,  is  suspended  until  the 
close  of  the  war  ;  and,  as  a  general  rule,  the  contract  of  an  alien 
enemy ^  is  illegal  and  absolutely  void.     (Story  on  Con.  24.) 

Tender. 
When  action  at  law  is  commenced  for  the  recovery  of  a  sum 


OF  THE  PLEADINGS  IN  A  SUIT.  95 

certain,  or  which  may  be  reduced  to  certainty  by  calculation,  or 
for  a  casual  and  involuntary  trespass  or  injury,  the  defendant 
may,  before  trial  or  before  the  assessment  of  damages,  or  before 
judgment  in  an  action  for  a  sum  certain,  tender  to  the  plaintiff 
or  his  attorney,  what  he  shall  deem  sufficient  to  pay  the  debt  or 
damages  and  costs  incurred  to  that  time.     (2  R  S.  457,  sec.  20.) 

If  it  appear,  upon  the  trial  of  the  cause,  or  upon  the  assess- 
ment of  damages,  that  the  amount  so  tendered  was  sufficient  to 
pay  the  plaintiff's  demand,  and  the  costs  of  the  suit  or  proceed- 
ing, up  to  the  time  of  the  tender,  the  plaintiff  shall  not  be  enti- 
tled to  recover  or  collect  any  interest  on  such  demand,  from  the 
time  of  such  tender,  or  any  costs  incurred  subsequent  to  that 
time,  but  shall  be  liable  to  the  defendant  for  the  costs  incurred 
by  him  subsequent  to  such  time.     (2  R.  S.  457,  sec.  21.) 

If  the  action  or  proceeding  be  to  recover  damages,  and  it  ap- 
pear that  the  sum  so  tendered  was  a  sufficient  amends  for  the 
injury  done,  and  for  the  costs  as  before  mentioned,  the  plaintiff 
shall  not  be  entitled  to  recover  any  costs,  in  any  such  action  or 
proceeding  incurred  after  such  tender,  but  shall  be  liable  to  the 
defendant,  for  his  costs  incurred  after  that  time.     (Sec.  22.) 

If  any  such  tender  be  accepted  by  the  plaintiff,  and  he  shall 
thereafter  proceed  in  the  action,  the  sum  so  accepted  shall  be  de- 
ducted from  ihe  whole  amount  of  the  recovery  and  judgment 
shall  be  rendered  only  for  the  residue.  The  plaintiff's  right  to 
recover  costs,  and  his  liability  to  pay  costs  to  the  defendant,  shall 
be  determined  by  the  amount  of  such  residue.     (Id.  sec.  23.) 

The  defendant,  instead  of  tendering  to  the  plaintiff  the  amount 
which  he  supposes  to  be  due,  may  pay  that  amount  into  court ^ 
and  have  it  considered  as  erased  from  the  complaint.  The  lat- 
ter course  is  advisable  in  all  cases  where  there  is  any  doubt  as 
to  the  sufficiency  of  the  tender  ;  for,  if  the  defendant  should  not 
succeed  in  proving  the  tender,  he  would  have  to  pay  all  the 
costs  of  the  trial ;  whereas,  if  the  money  be  paid  into  court,  and 
the  plaintiff  cannot  prove  more  due,  he  will  be  liable  to  pay  all 
costs  subsequent  to  the  time  of  paying  the  money  into  court. 

Where  money  has  been  paid  into  court,  the  plaintiff  may,  in 
all  cases,  take  it  out,  and  either  accept  it  in  satisfaction  of  his 
debt,  or  proceed  with  his  action.     (2  Cow.  R.  79J.) 

As  the  defendant,  by  paying  money  into  court,  admits  the 
debt  to  that  amount,  and  his  object  is  to  save  the  further  costs  of 
the  suit,  care  should  be  taken  to  pay  in  enough  to  satisfy  the 


96  OF  THE  PLEADINGS  IN  A  SUIT. 

claim,  together  with  interest,  when  recoverable,  up  to  the  time 
of  payment  into  court. 

A  tender  made  by  a  person  on  behalf  and  at  the  desire  of  the 
party,  is  as  good  as  if  it  had  been  made  by  the  party  himself. 
(2  Cow.  R.  794.) 

Properly  speaking,  no  money  is  a  lawful  tender,  but  such  as 
is  made  current  by  act  of  Congress. 

All  gold,  silver,  and  copper  coin,  stricken  and  issued  at  the 
mint  of  the  United  States,  pursuant  to  the  laws  of  Congres,  are 
a  legal  tender.     (2  Laws  of  U.  S.  267.) 

Bank  notes,  if  objected  to,  are  not  a  good  tender.  If,  however, 
no  objection  is  made,  it  is  a  waiver  of  tender  in  specie,  and  a 
tender  in  bank  bills  is  goed.     (8  Greenl.  110.     7  J.  R.  436.) 

To  constitute  a  good  tender,  the  party  should  not  only  be 
ready  to  pay,  and  make  an  actual  offer  of  the  sum  due,  but  ac- 
tually produce  the  same,  unless  such  production  be  dispensed 
with  by  the  express  declaration  of  the  creditor  that  he  will  not 
accept  it,  or  by  some  equivalent  act.  (10  East,  101.)  If  the 
plaintiff  do  not  object  to  receive  the  money,  it  is  not  sufficient  for 
the  defendant  to  prove  that  he  had  the  money  in  his  pocket,  or 
held  it  in  a  bag  under  his  arm  ;  he  ought  to  have  produced  it. 
(3  T.  R.  684.)  And  if  he  says  I  am  not  aware  of  the  exact  bal- 
ance, but  if  any  be  due,  I  am  ready  to  pay  it,  this  is  no  tender. 
(15  East,  428.) 

With  regard  to  the  amount  of  the  sum  tendered,  it  should,  in 
general,  be  a.i  (  ffer  of'Jhe  specific  sum  due,  U7iqualified  hy  any 
circumstance  whatever;  and  therefore  tendering  a  larger  sum 
and  making  a  cross  demand,  is  insufficient.  But  the  tender  of  a 
larger  sum,  and  asking  change,  is  good,  provided  the  creditor  do 
not  object  to  it  on  that  account,  but  only  demands  a  larger  sum. 
(6  Taunt.  336. 

The  tender  must  be  unconditional  in  payment  of  the  debt.  A 
tender,  therefore,  is  not  good  when  accompanied  with  the  de- 
mand of  a  receipt  in  full ;  (2  Phil.  Ev.  134,)  or  upon  condition 
that  it  shall  be  received  as  the  whole  of  the  balance  due ;  (4 
Camb.  156,)  or  that  a  particular  document  shall  be  given  up  to 
l)e  cancelled.     (2  Camp.  21.) 

Where  a  tender  of  money  is  made,  and  the  plaintilf  refuses  the 
money,  the  tender  cannot  be  pleaded  in  bar  of  the  action,  but  in 
bar  of  the  interest  and  costs  only  ;  for  the  debtor  must  still  pay 
his  debt.     The  tender,  therefore,  must  be  kept  good ;  that  is,  the 


OF  THE  PLEADINGS  IN  A  SUIT.  97 

amount  of  money  tendered  must  be  forth  coming  on  its  being 
demanded  by  the  creditor,  or  the  benefit  of  the  tender  is  lost. 
(12  J.  R.  276.     2  id.  24.) 

The  consequence  of  a  regular  tender  and  refusal  of  goods 
where  the  articles  will  subject  the  party  tendering  to  a  charge, 
in  order  to  keep  them,  which  embraces  almost  every  article  of 
traffic,  is  a  complete  discharge  of  the  contract  for  delivery  ;  and 
the  party  is  not  bound  to  hold  himself  ready  or  to  keep  the  ten- 
der good  ;  but  he  holds  the  articles  as  bailee  at  the  risk  of  the 
person  to  whom  they  have  been  tendered.  (8  J.  R.  474.  3  John. 
Cas.  249.     12  J.  R.  274.     13  Wend.  95.) 

If  the  debtor  be  present  in  person  or  by  his  agent,  and  makes 
a  tender  of  specific  articles,  at  the  proper  time  and  place,  accor- 
ding to  contract,  and  the  creditor  does  not  come  to  receive  them, 
or  refuses  to  accept  them,  the  better  opinion  is  that  if  the  articles 
be  properly  designated  and  set  apart,  the  debtor  is  thereby  dis- 
charged.    (2  Kent,  508.) 

Although,  as  we  have  seen,  the  seller,  by  default  of  the  buyer, 
becomes  bailee  for  the  keeping  of  ihe  goods,  yet  if  the  latter  un- 
reasonably refuses  to  accept  the  article  sold,  the  seller  is  not 
obliged  to  let  them  perish  and  run  the  risk  of  the  solvency  of 
the  buyer.  It  is  customary,  upon  the  neglect  or  refusal  of  the 
buyer,  to  come  in  a  reasonable  time  after  notice,  and  pay  for 
and  take  the  goods,  for  the  vender  to  sell  the  same  at  auction, 
and  to  hold  the  buyer  responsible  for  the  deficiency.  (5  J.  R. 
395.) 

In  tendering  specific  articles,  the  party  making  the  tender 
must  do  everything  in  his  power  to  place  himself  in  a  state  of 
perfect  readiness  to  perform,  or  the  tender  will  not  be  good.  (3 
John.  Cas.  253.)  When,  therefore,  the  vendor  was  to  count  cer- 
tain skins  sold,  in  order  to  ascertain  the  price  under  an  agree- 
ment ;  or  to  weigh  out  certain  flax  sold  lying  at  the  wharf,  as 
part  of  a  large  quantity,  from  which  it  was  not  yet  severed 
by  the  process  of  weighing,  and  the  purchaser  consequently 
could  not  know  his  part ;  it  was  held  that  the  counting  and 
weighing  not  having  been  performed,  the  property  did  not  pass, 
and  that  a  tender  could  not  be  pleaded.     (5  Taunt.  617.) 

It  is  a  general  rule  that  where  any  act  yet  remains  to  be  done 
by  the  purchaser,  to  prepare  the  goods  for  delivery,  the  property 
in  them  does  not  pass ;  for  the  identifying  the  goods  and  giving 
the  tenderee  a  remedy  for  them  by  action,  either  to  obtain  the 

7 


98  OF  THE  PLEADINGS  IN  A  SUIT. 

goods,  or  their  value,  is  not  eflected.  This  is  indispensable  ;  for 
the  party  is  not  to  be  deprived  of  all  remedy  upon  his  contract, 
unless  another  remedy  be  furnished  him  by  transferring  the 
property  of  the  goods,  and  placing  them  completely  under  his 
control.    (5  J.  R.  119.) 

If  no  place  be  designated  by  the  contract,  the  general  rule  is, 
that  the  articles  sold  are  to  be  delivered  at  the  place  where  they 
are  at  the  time  of  the  sale  ;  at  the  store  of  the  merchant,  the 
shop  of  the  manufacturer  or  mechanic,  and  the  farm  or  granary 
of  the  farmer,  where  the  commodities  sold  are  deposited  or  kept, 
(4  Wend.  380.) 

If  the  contract  be  to  deliver  specific  articles,  as  wheat  or 
timber,  the  obligor  is  not  bound  to  carry  the  same  abroad,  and 
seek  the  obligee  ;  but  he  must  call  upon  the  obligee  before  the 
day,  to  know  where  he  would  receive  the  articles,  and  they 
must  be  delivered  or  the  obligor  must  be  ready  and  able  to  make 
the  delivery  at  the  place  designated  by  the  obligee.  (2  Hill, 
531.) 

The  creditor  cannot  be  permitted  to  appoint  an  unreasonable 
place,  and  one  so  remote  from  the  debtor,  that  the  expense  of 
the  transportation  of  the  articles  might  exceed  the  price  of  them  ; 
and  if  the  place  intended  by  the  parties  can  be  inferred,  the 
creditor  has  no  right  to  appoint  a  difl'erent  place.  But  if  no 
place  of  performance  be  designated,  and  none  can  be  clearly  in- 
ferred from  collateral  circumstances,  the  creditor  may  designate 
a  reasonable  place  for  the  delivery  of  the  articles.  (2  Kent 
Com.  507.     2  N.  H.  R.  75.) 

Statute  of  Limitations. 

An  action  on  a  sealed  instrument  or  on  a  judgment,  or  decree 
of  any  court  in  the  United  States,  or  of  any  court  of  any  state 
or  territory,  must  be  commenced  within  twenty  years  after  the 
right  of  action  accrued.     (Code,  sec.  90.) 

The  following  actions  must  be  commenced  within  six  years  : 
An  action  upon  a  contract,  obligation  or  liability,  express  or  im- 
plied, cxcc])ting  those  mentioned  above ;  an  action  upon  a  lia- 
bility created  by  statute,  other  than  a  penalty  or  forfeiture  ;  an 
action  for  trespass  upon  real  property  ;  an  action  for  taking,  de- 
taining or  injuring  any  goods  or  chattels,  including  actions  for 
the  specific  recovery  of  personal  property ;  an  action  for  an  in- 


OF  THE  PLEADINGS  IN  A  SUIT.  99 

jury  to  the  person  or  rights  of  another  not  arising  on  contract ; 
an  action  for  rehef,  on  the  ground  of  fraud — the  cause  of  action 
not  to  be  deemed  to  have  accrued  until  the  discovery,  by  the 
aggrieved  party,  of  the  facts  constituting  the  fraud.  (Code, 
sec.  91.) 

Actions  against  a  sheriff,  coroner  or  constable,  upon  a  liability 
incurred  by  the  doing  of  an  act  in  his  official  capacity,  or  by 
the  omission  of  an  official  duty,  including  the  non-payment  of 
money  collected  on  execution,  but  excluding  an  action  for  an 
escape ;  and  actions  for  a  statute  penalty  or  forfeiture  given  to 
the  party  aggrieved,  or  to  such  party  and  the  state,  where  no 
different  term  is  limited  by  the  particular  statute,  must  be  com- 
menced within  three  years.     (Id.  sec.  92.) 

An  action  upon  a  statute  for  a  forfeiture  or  penalty  to  the 
state,  must  be  commenced  within  two  years.     (Sec.  93.) 

An  action  against  an  officer  for  the  escape  of  a  person  ar- 
rested or  imprisoned  on  civil  process,  and  an  action  by  a  private 
party  for  a  statute  penalty  or  forfeiture,  given  in  whole  or  in 
part,  to  any  one  who  will  sue  therefor,  must  be  brought  within 
one  year.     (Sees.  94-96.) 

No  action  can  be  brought  upon  a  judgment  rendered  in  any 
court  of  this  state,  (except  a  court  of  a  Justice  of  the  Peace,) 
between  the  same  parties,  without  leave  of  the  court  for  good 
cause  shown,  on  notice  to  the  adverse  party ;  and  no  action  on 
a  judgment  rendered  by  a  Justice  of  the  Peace  can  be  brought, 
in  the  same  county,  within  five  years  after  its  rendition,  except 
in  case  of  his  death,  resignation,  incapacity  to  act,  or  removal 
from  the  county,  or  that  the  summons  was  not  personally  served 
on  the  defendant  or  on  all  the  defendants,  or  of  the  death  of  some 
of  the  parties,  or  where  the  docket  or  record  of  such  judgment, 
is  or  shall  have  been  lost  or  destroyed.     (Code,  sec.  71.) 

An  action  under  the  foregoing  provisions  of  the  statute,  as  far 
as  it  relates  to  Justices'  Courts,  is  not  deemed  commenced,  until 
the  summons  is  served  on  the  defendants  or  one  of  them  ;  or 
delivered,  for  the  purpose  of  being  served,  to  the  constable  of 
the  county  in  which  the  defendants,  or  one  of  them,  usually,  or 
last  resided ;  or,  if  a  corporation  be  defendant  to  the  constable 
of  the  county  in  which  such  corporation  was  established  by 
law,  or  where  its  general  business  was  transacted,  or  where  it 
kept  an  office  for  the  transaction  of  business.     (Sec.  99.) 

In  an  action  for  a  balance  due  upon  a  mutual,  open  and  cur- 


100  OF  THE  PLEADINGS  IN  A  SUIT. 

rent  account,  where  there  have  been  reciprocal  demands  be- 
tween the  parties,  the  cause  of  action  must  be  deemed  to  have 
accrued  from  the  time  of  the  last  item  proved  in  the  account,  on 
either  side.     (Code,  sec.  95.) 

If  when  the  cause  of  action  accrue  against  a  person,  he  is  out 
of  the  state,  the  action  may  be  commenced  within  the  term 
limited  after  his  return  to  the  state  ;  and  if  after  the  cause  of 
action  has  accrued,  he  depart  from,  and  reside  out  of  the  state, 
the  time  of  his  absence  will  not  be  part  of  the  time  limited  for 
the  commencement  of  the  action.     (Code,  sec.  100.) 

If  a  person  entitled  to  bring  an  action — except  for  a  penalty 
or  forfeiture,  or  against  a  sherifl"  or  other  officer,  for  an  escape — 
be,  at  the  time  the  cause  of  action  accrued,  either  : 

1.  Within  the  age  of  twenty-one  years  ;  or, 

2.  Insane ;  or, 

3.  Imprisoned  on  a  criminal  charge,  or  in  execution  under 
the  sentence  of  a  criminal  court,  for  a  term  less  than  his  natural 
life ;  or, 

4.  A  married  woman  : — 

The  time  of  such  disability  will  not  be  part  of  the  time  lim- 
ited for  the  commencement  of  the  action.     (Sec.  101.) 

If  a  person  entitled  to  bring  an  action,  die  before  the  expiration 
of  the  time  limited  for  the  commencement  thereof,  and  the  cause 
of  action  survive,  an  action  may  be  commenced  by  his  represen- 
tatives, after  the  expiration  of  that  time  and  within  one  year  from 
his  death.  (Code,  sec.  102.)  If  a  person  against  whom  an  action 
may  be  brought,  die  before  the  time  limited  for  the  commence- 
ment thereof,  and  the  cause  of  action  survives,  an  action  may 
be  commenced  against  his  executors  or  administrator  after  the 
expiration  of  that  time,  and  within  one  year  after  the  issuing  of 
letters  testamentary,  or  of  administration.     (Id.) 

When  a  person  is  an  alien  subject,  or  citizen  of  a  country  at 
war  with  the  United  States,  the  time  of  the  continuance  of  the 
war  will  not  be  part  of  the  period  limited  for  the  commence- 
ment of  the  action.     (Code,  sec.  103.) 

If  an  action  he  commenced  within  the  time  prescribed  there- 
for, and  a  judgment  thoroin  for  the  phiinlifl'  be  reversed,  on  ap- 
peal, thf  ])huntiir,  or  if  ho  die  and  the  cause  of  action  survive, 
his  heirs  or  rf!prcs(>nlativ«'s  may  commence  a  new  action,  within 
one  yar  after  tlu^  reversal.     (( 'od(!,  sec.  104.) 

When  the  commencement  of  an  action  is  stayed  by  an  injunc- 


OF  THE  PLEADINGS  IN  A  SUIT.  IQl 

lion  or  statutory  prohibition,  the  time  of  the  continuance  of 
the  injunction  or  prohibition,  will  not  be  part  of  the  time  limited 
for  the  commencement  of  the  action.     (Code,  sec.  105.) 

No  person  can  avail  himself  of  a  disability,  unless  it  existed 
when  his  right  of  action  accrued.  (Id.  sec.  106.)  When  two  or 
more  disabilities  co-exist,  the  limitation  will  not  attach  until 
they  are  all  removed.     (Id.  sec.  107.) 

It  is  enacted  that  the  foregoing  shall  not  affect  actions  to 
enforce  the  payment  of  bills,  notes,  or  other  evidences  of  debt, 
issued  by  monied  corporations,  or  issued  or  put  in  circulation  as 
money  ;  (Id.  sec.  108  ;)  nor  actions  against  directors  or  stock- 
holders of  a  monied  corporation,  to  recover  a  penalty  or  for- 
feiture imposed,  or  to  enforce  a  liability  created  by  the  second 
title  of  the  Revised  Statutes,  entitled  "  Of  Incorporations  ;"  but 
such  actions  must  be  brought  within  six  years  after  the  disco- 
very by  the  aggrieved  party  of  the  facts  upon  which  the  penalty 
or  forfeiture  attached,  or  the  liability  was  created.    (Id.  sec.  109.) 

Where  the  time  for  commencing  an  action  arising  on  contract 
has  expired,  the  cause  of  action  will  not  be  deemed  revived,  by 
an  acknowledgment  or  new  promise,  unless  the  same  is  in 
writing,  subscribed  by  the  party  to  be  charged  thereby.  The 
foregoing,  however,  does  not  alter  the  effect  of  any  payment  of 
principal  or  interest,  made  upon  such  contract.    (Code,  sec.  110.) 

Set- Off. 

If  at  the  time  of  commencing  the  suit,  the  defendant  have  in 
his  own  right,  either  as  being  the  original  creditor  or  payee,  or 
as  being  the  assignee  or  owner,  a  demand  against  the  plaintifl', 
arising  upon  contract,  express  or  implied,  the  defendant  at  the 
time  of  joining  issue,  should  state  such  demand  in  his  answer, 
specifying  clearly  and  fully  the  nature  of  the  claim. 

If  the  demand  thus  set  up,  by  the  defendant,  is  found  to  be 
equal  to  the  plaintiff's  debt,  judgment  must  be  entered  for  the 
defendant  v/ith  costs.  If  it  be  less  thnn  the  plaintiff's  debt,  the 
plaintiff  is  entitled  to  judgment  for  the  balance,  and  to  costs. 
If  it  be  more  than  the  plaintiff's  debt,  and  the  balance  found 
due  the  defendant,  from  the  plaintiff  in  the  action,  be  one 
hundred  dollars,  or  under,  judgment  must  be  rendered  for  the 
defendant  for  such  balance  with  costs,  precisely  as  though  the 
suit  had  been  brought  by  him.     If  the  balance  found  due  the 


102  OF  THE  PLEADINGS  IN  A  SUIT. 

defendant,  exceed  one  hundred  dollars,  the  Justice  must  set  off 
so  much  of  the  defendant's  demand  against  the  plaintiff's  debt 
as  will  be  sufficient  to  satisfy  it,  if  required  to  do  so  by  the  de- 
fendant, and  render  judgment  for  the  defendant  for  his  costs. 
If  the  defendant  do  not  require  such  set-off,  the  Justice  must 
enter  judgment  of  discontinuance  for  the  defendant,  with  costs  ; 
and  the  defendant  may  thereafter  sue  for,  and  recover  his 
demand,  in  any  court  having  cognizance  thereof  (2  R.  S.  333, 
sees.  53,  54.) 

To  constitute  a  set-off,  the  demand  must  be  for  real  estate 
sold,  or  for  personal  property  sold,  or  for  money  paid,  or  services 
done  ;  or  if  it  be  not  such  a  demand,  the  amount  must  be  liqui- 
dated, or  be  capable  of  being  ascertained  by  calculation.  (Id. 
sec.  51.) 

The  subject  of  the  set-off  must  also  have  existed  at  the  time 
of  the  commencement  of  the  suit,  and  must  then  have  belonged 
to  the  defendant.  (Id.)  "Where,  therefore,  a  defendant,  after  a 
suit  commenced  against  him,  bought  a  note  against  the  plaintiff 
with  the  intent  to  set  it  off'  against  the  plaintiff's  debt,  this  was 
held  inadmissible.     (3  John.  Cas.  145.     1  Cai.  71,  72.) 

If  there  be  several  defendants,  the  demand  set  off",  must  be 
due  to  all  of  them  jointly ;  (2  R.  S.  333,  sec.  51  ;)  unless  there 
was  an  agreement  between  the  parties  that  such  debts  might 
be  set  off  against  each  other.  (2  Taunt.  170.)  Where,  how- 
ever, the  plaintiff  owes  a  debt  to  several  persons  jointly,  one  of 
whom  owes  him.  the  latter  may  acquire  the  right  of  set-oft" 
against  the  plaintiff,  by  taking  an  assignment  to  himself  alone, 
of  the  debt  due  from  the  plaintiff  before  the  plaintiff's  suit  is 
commenced.  (17  J.  R.  330.)  If  A.  agree  in  writing,  to  work 
for  B ,  and  C.  guaranties  by  endorsement,  that  A.  will  do  the 
work  in  a  particular  manner,  and  A.  sue  B.,  B.  may  set  off 
damages  for  a  breach  of  the  contract  to  do  the  work,  against 
A.'s  claim  ;  for  C.  is  a  mere  guaranty,  and  is  not  jointly  liable 
with  A.     (10  id.  250.) 

If  the  action  be  founded  upon  a  contract,  (other  than  a  nego- 
tiable promissory  note  or  bill  of  exchange,)  which  has  been 
assigned  by  the  plaintiff,  a  demand  existing  against  such  plain- 
tiff, or  any  assignee  of  such  conlruc't,  at  the  time  of  the  assign- 
ment thereof,  and  belonging  to  the  defendant  in  good  faith 
before  notien  f»f  such  assignuK^nt,  may  1)C  set  off  to  the  amount 
of  the  plaintiff's  debt,  if  llie  demand  be  such  as  might  have 


OF  THE  PLEADINGS  IN  A  SUIT.  103 

been  set  off  against  such  plaintiff  or  such  assignee  \vhile  the 
contract  belonged  to  him.  (2  11.  S.  332.  Code,  sec.  ]  12.)  If  a 
note  not  negotiable,  be  given  bjr  A.  to  B.,  and  assigned  by  B.  to 
C,  and  by  C.  to  D.  ;  in  a  suit  on  such  note  against  A.,  which 
must  be  in  the  name  of  B.,  A.  may  set  off  to  the  amount  of  the 
note  only  :  either,  1st.  A  demand  against  B.  the  plaintiff,  which 
was  in  existence  at  the  time  of  the  assignment  by  B.  to  C,  and 
which,  if  it  were  not  originally  due  to  A.,  was  assigned  to  him 
in  good  faith,  before  he  had  notice  of  the  assignment  made  by 
B.  to  C. ;  or,  2nd.  A.  may  set  off  a  demand  against  C  the  first 
assignee,  which  was  in  existence  at  the  time  of  the  assignment 
by  C.  to  D.,  and  which,  if  it  were  not  originally  due  to  A.,  was 
assigned  to  him  in  good  faith,  before  he  had  notice  of  the 
assignment  made  by  C.  to  D.  ;  or,  3rd,  A.  may  set  off  a  demand 
against  D.,  which  was  in  existence  at  the  time  of  the  com- 
mencement of  the  suit,  and  then  belonged  to  A.  either  as  the 
original  creditor,  or  as  assignee.     (Edw,  Tr.,  3d  ed.,  60.) 

If  the  action  be  upon  a  negotiable  promissory  note,  or  bill  of 
exchange,  which  has  been  assigned  to  the  plaintiff,  after  it 
became  due,  a  set-off  to  the  amount  of  the  plaintiff's  debt,  may 
be  made  of  a  demand  existing  against  any  person  or  persons, 
who  shall  have  assigned  or  transferred  such  note  or  bill,  after  it 
became  due,  if  the  demand  be  such  as  might  have  been  set  off 
against  the  assignor,  while  the  note  or  bill  belonged  to  him.  (2 
R.  S.  332,  sec.  51.)  If,  however,  a  note  be  transferred  after  it 
falls  due,  the  maker  is  not  entitled  to  set  off  a  demand  against 
the  payee,  if,  at  the  time  of  the  transfer,  the  payee  has  other 
demands  against  the  maker  to  an  amount  sufficient  to  exhaust 
the  demands  sought  to  be  set  off.     (12  Wend.  356.) 

If  the  defendant  who  has  a  set  off,  makes  no  mention  of  it 
in  his  answer,  he  will  forever  after  be  precluded  from  recovering 
it,  or  any  part  of  it ;  (2  R.  S.  333,  sec.  58  ;)  excepting  only, 
where  such  set-off"  shall  exceed  the  plaintiff's  judgment  by  one 
hundred  dollars  ;  or  where  the  set-off  consisted  of  a  judgment 
in  favor  of  the  defendant,  or  belonging  to  him,  rendered  before 
the  commencement  of  the  suit  in  which  the  same  might  have 
been  set  off ;  or  when  a  set-off  shall  have  been  claimed  by  him, 
and  a  balance  exceeding  one  hundred  dollars  shall  have  been 
found  in  his  favor  ;  in  which  case,  the  defendant  may  maintain 
an  action  for  such  part  of  his  demand  as  was  not  allowed  to 
him  as  a  set-off :  or  where  the  suit  was  commenced  against  the 


04  OF  THE  PLEADINGS  IN  A  SUIT. 

defendant  by  attachment,  and  he  did  not  personally  appear  in 
such  suit :  or  where  the  set-off  consists  of  claims  for  unliqui- 
dated damages  :  or  claims  in  suit  in  another  court,  at  the  time 
of  the  commencement  of  the  suit  before  the  Justice.  (2  R.  S. 
334,  sec.  59.) 

If  the  demand  which  might  have  been  set-off,  consisted  of  a 
negotiable  note  or  bill  of  exchange,  no  action  shall  be  main- 
tained thereon,  by  any  person  who  may  derive  title  thereto, 
from  or  through  the  defendant.     (Id.  sec.  58.) 

In  suits  brought  by  executors  and  administrators,  the  defend- 
ant may  set  off  demands  existing  against  their  testators  or  intes- 
tates, and  belonging  to  the  defendant  at  the  time  of  their  death, 
in  the  same  manner  as  if  the  action  had  been  brought  by  and 
in  the  name  of  the  deceased.  If  the  judgment  is  in  favor  of 
the  defendant,  it  must  be  rendered  against  the  executors  and 
administrators  in  their  representative  character  ;  it  will  then  be 
evidence  of  a  debt  established,  to  be  paid  in  the  course  of  ad- 
ministration.    (Id.  56,  57.) 

If  upon  the  trial,  it  is  ascertained  by  the  Justice,  that  the 
plaintiff  's  claim,  together  with  the  demands  set  off  by  the  de- 
fendant, exceed  four  hundred  dollars,  the  Justice  has  no  juris- 
diction of  the  cause.  (Code,  sec.  47.)  He  is,  therefore,  required 
to  enter  judgment  of  discontinuance  against  the  plaintiff,  with 
costs.     (2  R.  S.  333,  sec.  55.) 

The  claim  and  set-off  mentioned  above,  must  be  open  and 
unliquidated,  between  the  parties.  (2  Cow.  413.)  If  the  plain- 
tiff should  sustain  by  proof  a  complaint  on  a  note  for  three 
hundred  dollars,  and  the  defendant,  in  his  answer,  prove  that 
he  had  paid  on  the  note  two  hundred  and  fifty  dollars,  the 
Justice  v/ould  bo  bound  to  give  judgment  for  the  balance.  (Id.) 
But  if  the  plaintiff  should  prove  a  note  of  three  hundred  dollars, 
and  the  defendant  should  prove  a  set-off  to  the  amount  of  two 
hundred  and  fifty  dollars,  in  such  case,  the  Justice  must  dis- 
miss the  suit.     (10  Wend.  555,  557.) 

Fornicr  Recovery. 

An  aus\V(;r  of  a  fdruuM-  recovery  for  the  subject  matter  of  the 
pending  suit,  sustained  by  proof,  would  be  a  complete  defence  ; 
also,  that  the  same  cause  of  action,  between  the  same  parties, 
has  already  been  submitted  and  passed  upon.    The  same  cause 


OF  THE  PLEADINGS  IN  A  SUIT.  105 

of  action^  is  where  the  evidence  will  support  both  actions,  in  a 
different  form,  thereby  making  the  evidence  given  in  the  first 
action  the  test  of  its  identity  with  the  second.     (7  J.  R.  20.) 

A  non-sidt  in  a  former  action  is  not  a  bar  to  a  new  action  for 
the  same  cause.  Where  a  cause  is  tried  by  a  Justice,  the  plain- 
tiff may  elect  to  become  non-suit  at  any  time  before  the  cause  is 
finally  submitted  on  the  merits  to  the  Justice  ;  but  after  such  sub- 
mission, the  plaintiff  cannot  discontinue  or  become  non-suit.  (10 
J.  R.363.     Hid.  457.) 

The  plaintiff  may  elect  to  become  non-suited  after  a  trial  by 
jury  and  before  their  verdict  is  rendered ;  but  where  a  demand 
has  once  been  finally  submitted  to  a  jury,  their  verdict  is  a  bar 
to  any  other  suit  for  the  same  cause  ;  and  it  is  a  complete  bar, 
notwithstanding  the  jury  may  have  rejected  such  demand  for 
want  of  proof,  or  disregarded  it  for  any  other  cause,  and  not- 
withstanding the  Justice  may  have  neglected  to  render  judg- 
ment upon  the  verdict.  (5  J.  R.  346.  2  R.  S.  176,  sec.  119.  11 
J.  R.  458.     2  id.  181.     6  id.  168.     9  Wend.  287.     12  id.  504.) 

If  a  Justice  to  whom  a  cause  is  finally  submitted,  neglect  to 
render  any  judgment^  within  the  four  days  allowed  him  by  stat- 
ute, it  is  no  bar  to  a  second  suit  for  the  same  cause  of  action, 
(3  Hill,  60.) 

If  a  demand  consisting  of  a  single  item,  be  barely  stated  to 
the  jury,  among  other  things,  who  neglect  to  pass  upon  or  notice 
it  from  any  cause ;  or  if  a  demand  be  submitted  to  and  disal- 
lowed by  them,  this  will  operate  as  a  perpetual  bar  to  an  action 
for  the  same  ;  and  should  a  subsequent  jury  allow  such  suhnnit- 
ted  or  disallowed  item  or  demand  among  others  properly  allow- 
able, the  verdict  and  judgment  will  thereby  be  tainted  for  the 
whole  and  reversed  entirely.     2  Cow.  Tr.  726,  and  cases  cited.) 

A  plaintiff  cannot  sjolit  his  demand  so  as  to  bring  two  or  more 
actions  upon  it.  And  where  a  demand  is  submitted  and  only  a 
part  of  it  allowed  by  a  Justice  or  jury,  it  is  equally  a  bar  to  a 
future  claim  for  the  whole  and  every  part  of  the  claim  submit- 
ted. (16  J.  R.  136.)  Where,  therefore,  the  plaintiff  brought  sepa- 
rate suits  upon  the  same  note,  the  first  suit,  though  but  for  a 
small  part  of  the  note,  was  held  a  perpetual  bar  to  a  recovery  of 
the  residue.  (16  J.  R.  121.)  So  also,  where  three  barrels  of  pot- 
ashes were  sold  at  the  same  time,  and  the  vendor  brought  his 
action,  and  recovered  for  one  of  them,  this  barred  his  claim  for 
the  whole.     (15  J.  R.  229.) 


106  OF  THE  PLEADINGS  IN  A  SUIT. 

When  the  defendant  sets  up  in  his  answer,  a  former  suit  by 
him  against  the  plaintiff,  in  which  the  plaintiff  ought,  but  ne- 
glected, to  set  off  his  demand,  it  is  essential  to  aver  and  prove, 
that  such  former  suit  was  brought  before  the  commencement  of 
the  second  one  ;  otherwise  it  is  no  bar. 

Question  of  Title. 

A  Justice  of  the  Peace  has  no  jurisdiction  of  a  cause  in  which 
the  title  to  real  property  comes  in  question,  as  provided  by  sec- 
tions 55  to  62  of  the  Code,  inclusive.  (Code,  section  54.) 
Such  title,  therefore,  if  pleaded,  would  be  a  bar  to  the  existing 
suit.  The  defendant  can  avail  himself  of  it  only  by  answer  iti 
writing^  signed  by  him  or  his  attorney,  which  he  must  deliver 
to  the  Justice,  who  will  thereupon  countersign  the  same,  and  de- 
liver it  to  the  plaintiff.     (Id.) 

FORM    OF    ANSWER. 

In  Justices'  Court,  before  David  Long,  Justice. 
John  Doe  ) 

against  >  Ansivcr  shoioing  Title. 

Richard  Roe      j 

The  above  named  defendant,  in  answer  to  plaintiff's  com- 
plaint, says  that  the  house  and  lot  mentioned  in  the  complaint, 
and  for  which  plaintiff  claims  one  year's  rent,  from  the  first  day 
of  June,  eighteen  hundred  and  forty-nine,  never  belonged  to 
plaintiff;  but  that  previous  to  the  aforesaid  first  day  of  June 
they  were  the  property  of  one  Jacob  Little,  by  whom,  on  the  said 
first  day  of  June,  they  were  sold  to  the  defendant,  who  has  since 
remained  the  lawful  owner. 

Richard  Roe. 

The  Justice  may  countersign  the  preceding  in  this  form: 

"  The  above  answer  was  delivered  to  me,  at  the  joining  of 

issue  ill  ilic  above  cause,  on  the day  of ,  1849. 

David  Long,  Justice." 

At  the  lime  of  answering,  the  delcndaiit  nnist  also  deliver  to 
the  Justice  a  written  undertaking,  executed  by  at  least  one 


OF  THE  PLEADINGS  IN  A  SUIT.  107 

sufficient  surety,  and  approved  by  the  Justice,  to  the  effect  that 
if  the  plaintifi"  shall,  within  thirty  days  thereafter,  deposit  with 
the  Justice  a  summons  and  complaint,  in  an  action  in  the  Su- 
preme Court  for  the  same  cause,  the  defendant  will,  within  ten 
days  after  such  deposit,  give  an  admission  in  writing,  of  the 
service  thereof.  Where  the  defendant  was  arrested  in  the  ac- 
tion before  the  Justice,  the  undertaking  must  further  provide 
that  he  will  at  all  times  render  himself  amenable  to  the  process 
of  the  court,  during  the  pendency  of  the  action,  and  to  such  as 
may  be  issued  to  enforce  the  judgment  thereon.  In  case  of  fail- 
ure by  the  defendant,  to  comply  with  the  undertaking,  the  surety 
will  be  liable,  not  exceeding  one  hundred  dollars.  (Code,  sec- 
tion 56.) 

FORM    OF    UNDERTAKING. 

In  Justices'  Court,  before  David  Long,  Justice. 
John  Doe        i 
against         > 
Richard  Roe.    5 
The  defendant  in  this  action  having  interposed  an  answer  to 
the  complaint  of  the  plaintiff,  bringing  in  question  the  title  of 
the  plaintiff  to  real  property :  now,  therefore,  for  the  purpose  of 
suspending  the  jurisdiction  of  the  said  Justice  therein,  and  in  con- 
sideration thereof,  we,  Richard  Roe  and  Henry  Brown,  hereby 
undertake  and  promise,  to  and  with  the  above  named  John  Doe, 
plaintiff,  in  the  sum  of  one  hundred  dollars,  that  if  the  said  John 
Doe  shall,  within  thirty  days  from  this  date,  deposit  with  the 
above  named  Justice,  a  summons  and  complaint  in  an  action  in 
the  Supreme  Court,  for  the  same  cause,  the  said  Richard  Roe, 
will  within  ten  days  after  such  deposit,  give  an  admission  in 
writing,  of  the  service  thereof 

Richard  Roe. 
Dated ,  1849,  Henry  Brown. 

If  the  defendant  was  arrested  in  the  action,  after  the  word 
•'  thereof, ^^  in  the  preceding  add— awe?  that  he  will  at  all  times 
render  himself  amenable  to  the  j)rocess  of  the  said  court  during 
the  pendency  of  the  action,  and  to  such  as  7nay  be  issued  to  en- 
force tlte  judgment  therein. 

The  undertaking  must  be  approved  by  the  Justice.     The  Jus- 
tice's approval  may  be  endorsed  upon  the  undertaking  thus  : 


108  OF  THE  PLEADINGS  IN  A  SUIT. 

''I  approve  the  within  undertaking,  and  the  surety  therein 
named. 

David  Long,  Justice." 

Upon  the  dehvery  of  the  undertaking  to  the  Justice,  the  ac- 
tion before  him  must  be  discontinued,  and  each  party  must  pay 
his  own  costs.     (Code,  sec.  57.) 

The  costs  so  paid  by  either  party,  must  be  allowed  to  him  if  he 
recover  costs  in  the  action  to  be  brought  for  the  same  cause  in  the 
Supreme  Court.  If  no  such  action  be  brought  within  thirty 
days  after  the  delivery  of  the  undertaking,  the  defendant's  costs 
before  the  Justice  may  be  recovered  of  the  plaintiff.     (Id.) 

If  the  undertaking  be  not  delivered  to  the  Justice,  he  will 
have  jurisdiction  of  the  cause,  and  must  proceed  therein  ;  and 
the  defendant  will  be  precluded,  in  his  defence,  from  drawing 
the  title  in  question.     (Sec.  58.) 

If,  however,  it  appear  on  the  trial,  from  the  plaintiff's  own 
showing,  that  the  title  to  real  property  is  in  question,  and  such 
title  is  disputed  by  the  defendant,  the  Justice  must  dismiss  the 
action,  and  render  judgment  against  the  plaintiff  for  the  costs. 
(Sec.  59.) 

When  a  suit  before  a  Justice  is  discontinued  by  the  delivery 
of  an  answer  and  undertaking  as  provided  supra,  the  plaintiff 
may  prosecute  an  action  for  the  same  cause  in  the  Supreme 
Court.  The  plaintiff,  however,  can  complain  for  the  same  cause 
of  action  only  on  which  he  relied  before  the  Justice ;  and  the 
answer  of  the  defendant  must  be  the  same  which  he  made  be- 
fore the  Justice.     (Sec.  GO.) 

If  the  judgment  in  the  Supreme  Court  be  for  the  plaintiff,  he 
will  recover  costs.  If  it  be  for  the  defendant,  he  will  recover 
costs,  except  that  upon  a  verdict  he  must  pay  costs  to  the  plain- 
tiil"  unless  the  judge  certify  that  the  title  to  real  property  came 
in  question  upon  the  trial.     (Sec.  Gl.) 

If,  in  ail  action  before  a  Juslice,  the  plaintiff  have  several 
causes  of  action,  to  oik;  of  which  the  defence  of  title  to  real 
pro[)f;rty  is  interposed,  aud  as  to  such  cause  the  defendant  an- 
swer aiifl  (](;Mver  an  undertaking,  the  Justice  must  discontinue 
ihr;  jjrocecihngs  as  to  that  cause,  and  iho  ])huntifr  may  com- 
ni(;nce  anolh(;r  action  in  th(!  Supreme  (Jonrt  therefor.  As  to  the 
other  causes  of  action,  the  Justice  may  continue  his  proceed- 
ings.    (Sec.  i't2.) 


CHAPTER    VI 


ADJOURNMENTS. 


I  SHALL  treat  the  subjects  of  this  chapter  under  the  following 
heads  : — 

1.  AdjournmeJit  on  Motion  of  the  Justice. 

2.  On  Motion  of  the  Plaintiff. 

3.  On  Motion  of  the  Defendant. 

4.  Second  or  further  Adjounwient. 

5.  General  Rides  of  AdjournTnents. 

1.   On  Motion  of  the  Justice. 

At  the  time  of  the  return  of  either  a  summons  or  attachment, 
or  of  joining  issue  Avithout  process,  a  Justice  may,  in  his  discre- 
tion, and  with  or  without  the  consent  of  parties,  adjourn  the 
cause  not  exceeding  eight  days.  (2  R.  S.  335,  sec.  68.  10 
Wend.  R.  497.) 

A  Justice  can  in  no  case  adjourn  a  cause  commenced  by  war- 
rant, on  his  own  motion  ;  nor  can  he  exercise  that  right  in  a  suit 
commenced  by  a  summons  or  attachinent  at  any  other  time  than 
on  the  return  of  such  summons  or  attachment.  (Id.  69.  2  J. 
R.  192.     15  id.  492.) 

The  discretion  allowed  to  a  Justice  in  adjoiu'ning,  in  the  case 
above  stated,  is  not  wholly  an  arbitrary  discretion  ;  it  must  be 
soundly  and  judiciously  exercised.  (8  J.  R.  426.)  While,  on 
the  one  hand,  he  ought  not  to  adjourn  the  cause  on  his  own  mo- 
tion, when  satisfied  it  will  injuriously  affect  the  rights  of  either 
party  on  the  other,  he  should  not  refuse  an  adjournment  where 
it  is  evident  the  situation  of  either  party  really  demands  it.  In 
one  case,  where  the  defendant  appeared  before  the  Justice  on 
the  morning  of  the  return  day  of  the  summons,  and  applied  in 
writing  for  an  adjournment,  on  account  of  his  child  being  dan- 
gerously sick,  which  was  denied,  the  Supreme  Court  held  that 
the  situation  of  the  defendant's  child  was  such  as  ought  to  have 
induced  the  Justice  to  put  off  the  trial.     (Id.) 

The  Justice  may  adjourn  to  another  place  difierent  from  the 


no  ADJOURNMENTS. 

place  mentioned  in  the  summons,  without  the  consent  of  par- 
ties, both  parties  having  first  appeared  at  the  place  mentioned 
in  the  process.     (1  Cow.  112.) 

A  Justice  can  never  adjourn  a  cause  by  sending  a  note  in 
writing  to  the  parties,  informing  them  of  the  time  and  place  to 
which  he  has  adjourned,  but  must  in  all  cases  of  adjournment 
be  personally  present.     (4  J.  R.  117.) 

2.   On  Motion  of  the  Plaintiff. 

At  the  time  of  the  return  of  a  summons  or  attachment,  or  the 
joining  of  issue  without  process,  the  plaintiff  will  be  entitled  to 
an  adjournment  to  a  time  to  be  fixed  by  the  Justice,  not  exceed- 
ing eight  days  thereafter,  if  he  or  his  attorney  shall,  if  required 
by  the  defendant,  make  oath  that  he  cannot,  for  want  of  some 
material  testimony  or  witness,  safely  proceed  to  trial.  (2  R.  S. 
335,  sec.  70.) 

The  adjournment  may  be  for  any  less  period  than  eight  days, 
but  cannot  exceed  it,  except  by  consent  of  parties.  In  compu- 
ting the  time,  the  day  of  adjourning  is  to  be  excluded  ;  so  that 
if  process  be  returnable  on  Tuesday,  the  Justice  would  have  no 
power  to  adjourn  beyond  the  Wednesday  of  the  next  week. 
(Code,  sec.  368.     1  Cow.  324.) 

An  adjournment,  on  the  application  of  the  plaintiff,  cannot  be 
granted  at  any  other  time  than  on  the  return  of  a  summons  or 
attachment,  or  the  joining  of  issue  without  process.  (9  J.  R. 
136.  7  id.  530.  2  id.  192.)  If  the  defendant  does  not  appear 
on  the  return  of  the  summons  or  attachment,  the  Justice  may 
adjourn  the  cause,  on  the  simple  request  of  the  plaintiff  without 
oath.  (So  also,  if  the  defendant  aj^pear,  and  docs  not  object  to 
the  adjouiiimcnt.  The  defendant  may,  however,  object  to  the 
adjourmncnt,  ruid  require,  as  a  condition  of  its  being  granted, 
that  the  plaintilf  or  his  attorney  make  oath  tliat  he  cannot,  for 
want  of  some  material  testimony  or  wilncss,  safely  proceed  to 
trial.     (2  R.  8.  335,  sec.  70.) 

A  cause  conmicnccd  by  warrant,  at  the  suit  of  a  non-resident 
plaintifl",  may  be  adjourned  oji  the  aj)f)ncation  of  sucli  phiintiff, 
supported  ])y  his  oath,  that  on  account  of  the  absence  of  some 
material  witness  or  testimony,  he  caimot  then  safely  proceed  to 
trial.  (Id.  sf'-.  71.)  In  this  case,  the  afljournment  nnist  be  to  a 
day  not  less  than  three,  nor  more  than   twelve  days  thereafter. 


ADJOURNMENTS.  HI 

unless  the  parties  and  Justice  shall  otherwise  agree.  (2  R.  S. 
336,  sec.  74.)  Upon  such  adjournment,  the  Justice  must  dis- 
charge the  defendant  from  custody ;  but  the  cause  will  not  be 
discontinued  by  such  discharge ;  and  at  the  adjourned  day,  the 
same  proceedings  must  l)e  had  as  on  the  return  of  a  summons 
personally  served.     (Id.  sec.  73.) 

Whenever  a  short  summons  is  issued  in  favor  of  a  non-resi- 
dent plaintiff,  no  longer  adjournment  shall  be  allowed  than  in 
case  of  a  warrant  at  the  instance  of  a  non-resident  plaintiff,  un- 
less the  parties  otherwise  agree.  (Sess.  Laws,  1831,  p.  403,  sec. 
32.) 

When  the  defendant  is  a  non-resident,  and  is  sued  by  short 
summons,  the  same  rule  as  to  adjournments,  governs,  as  in  cases 
of  non-resident  plaintiffs. 

3.   On  Motion  of  the  Defendant. 

When  the  suit  is  commenced  either  by  summons  or  attach- 
ment, or  by  joining  issue  without  process  in  all  cases  arising  on 
contract,  the  defendant  will  be  entitled  to  an  adjournment  upon 
his  complying  with  the  following  requisitions: — (211.  S.  336,  sec. 
75.) 

1.  The  application  must  be  made  at  the  thne  of  joining  issue. 

2.  If  required  by  the  plaintiff  or  the  Justice,  the  defendant 
must  make  oath  that  he  cannot  safely  proceed  to  trial  for  the 
want  of  some  material  testimony  or  witness,  to  he  specified  hy 
him. 

3.  If  required  by  the  plaintiff,  the  defendant  must  give  secu- 
rity by  a  bond  to  the  plaintiff,  in  the  penalty  of  one  hundred  dol- 
lars. 

The  absent  testimony  or  witness  must  be  specified  by  the  de- 
fendant, if  he  is  required  to  do  so,  by  the  plaintiff  or  Justice. 
He  is  not,  however,  bound  to  detail  all  the  testimony,  or  the 
names  of  all  the  witnesses  ;  it  is  sufficient  to  give  the  name  of 
one  absent  material  witness,  without  whose  testimony  he  can- 
not safely  proceed  to  trial.  If  the  defendant  refuses  to  name  his 
witness  or  to  state  where  he  resides,  the  adjournment  may  be 
denied.     (2  Cow.  Tr.  842.     15  J.  R.  43.) 

^  Unless  the  defendant,  when  required  by  the  plaintiff,  gives 
the  requisite  security,  although  in  other  respects  he  complies 
with  the  provisions  of  the  statute,  no  adjournment  can  be  granted, 
but  the  Justice  should  proceed  with  the  trial  of  the  cause. 


112  ADJOURNMENTS. 

FORM    OF    SECURITY    IN    ACTIONS    ON    CONTRACT. 

Know  all  men  by  these  presents,  that  wc,  Richard  Roe  and 
Henry  Brown,  are  held  and  firmly  bound,  unto  John  Doe,  in 
the  penal  sum  of  one  hundred  dollars,  to  be  paid  to  the  said 
John  Doe,  or  to  his  certain  attorney,  representatives  or  assigns  : 
to  which  payment,  well  and  truly  to  be  made,  we  bind  our- 
selves, our  heirs  and  personal  representatives,  jointly  and  sever- 
ally, firmly  b3''  these  presents.  iSealed  with  our  seals,  and  da- 
ted this  5  th  day  of  June,  1849. 

The  condition  of  this  obligation  is  such,  that  whereas  a  suit  is 
now  depending  before  David  Long,  a  Justice  of  the  Peace  of 
the  county  of  Chenango,  betv/een  John  Doe,  plaintiff,  and  Rich- 
ard Roe,  defendant,  for  the  recovery  of  a  demand  arising  upon 
contract,  in  which  action  the  said  defendant  has  desired  an  ad- 
journment of  the  said  cause. 

Now,  therefore,  if  no  part  of  the  property  of  the  said  defen- 
dant, liable  to  bo  taken  on  execution,  shall  be  removed,  secreted, 
assigned,  or  in  any  way  disposed  of,  (except  for  the  necessary 
support  of  himself  and  family,)  until  the  said  demand  of  the 
said  plaintiff  shall  be  satisfied,  or  until  the  expiration  of  ten 
days  after  the  said  plaintiff  shall  be  entitled  to  have  an  execu- 
tion issued  on  the  judgment  in  the  said  cause,  if  he  shall  obtain 
judgment,  then  this  obligation  to  be  void  and  of  no  effect;  other- 
wise to  be  and  remain  in  full  force  and  virtue. 

Richard  Roe.      [l.  s.] 
Henry  Brown,     [l.  s.] 
.Scaled  and  delivered  in  presence  of 
David  Long,  Justice. 

The  Justice's  approval  of  the  surety  in  the  bond  is  required 
by  statute,  and  should  be  endorsed  upon  the  bond.  (2  R.  S.  1 70, 
sec.  74.) 

Tlio  time  of  adjournment  permitted  the  defendant  upon  his 
giving  security,  is  for  such  rea.w/ifl^^e  period  as  will  enable  the 
defendant  to  procure  his  testimony,  or  witness,  not  exceeding 
ninety  days.     (Id.) 

What  is  a  rcasonalth;  tini(\  is  left  to  the  discretion  of  the 
Justicf.  If  llie  witness  live  at  a  distance,  the  adjournment 
.should  not  he  restricted  to  the  shortest  possible  time  that  would, 
under  ordinary  circumstances,  be  required,  to  procure  his  at- 


ADJOURNMENTS.  113 

tendance.  The  probability  of  his  being  absent  from  home, 
engaged  in  business,  sick,  &.C.,  should  all  be  taken  into  account, 
and  such  time  given,  as  may,  in  the  particular  instance  be 
deemed  reasonable.     (2  J.  R.  383.) 

In  a  cause  commenced  by  warrant,  at  the  suit  of  a  non- 
resident plaintiff",  the  defendant  may  obtain  an  adjournment 
upon  application,  supported  by  his  oath,  that  he  lias  a  good 
defence  to  the  action,  and  is  not  ready  to  proceed  to  trial.  The 
adjournment,  however,  must  not  be  granted,  unless  the  defend- 
ant will  consent  that  any  witness  on  the  part  of  the  plaintiff", 
who  shall  be  then  attending,  may  be  then  examined  on  oath  by 
such  Justice,  his  testimony  reduced  to  writing,  certified  by  the 
Justice,  and  left  with  him  to  be  read  on  the  trial  of  the  cause, 
(2  R.  S.  336,  sec.  71.) 

During  the  time  of  the  adjournment,  the  defendant  must 
remain  in  the  custody  of  the  constable,  unless  he  shall  give 
security  by  a  bond  to  the  plaintiff"  in  the  penalty  of  one  hundred 
dollars.     (Id.  72.) 

FORM    OF    SECURITY    IN    ACTIONS    COMMENCED    BY    WARRANT. 

Know  all  men  by  these  presents,  that  we,  Richard  Roe  and 
Henry  Brown,  are  held  and  firmly  unto  unto  John  Doe  in  the 
penal  sum  of  one  hundred  dollars,  to  be  paid  to  the  said  John 
Doe,  or  to  his  certain  attorney,  representatives,  or  assigns  ;  to 
which  payment  well  and  truly  to  be  made,  we  bind  ourselves, 
our  heirs,  and  personal  representatives,  jointly  and  severally, 
firmly  by  these  presents.  Sealed  with  our  seals,  and  dated  this 
5th  day  of  June,  1849. 

The  condition  of  this  obligation  is  such,  that  whereas  a  suit, 
commenced  by  warrant,  is  now  depending  before  David  Long, 
one  of  the  Justices  of  the  Peace  of  Oxford,  in  the  county  of 
Chenango,  wherein  the  said  John  Doe  is  plaintiff",  and  the  said 
Richard  Roe,  defendant ;  and  upon  the  application  of  the  said 
defendant,  the  trial  of  said  cause  has  been  adjourned  until  the 
15th  day  of  June,  instant,  at  10  o'clock,  in  the  forenoon,  at  the 
office  of  the  said  Justice,  in  said  town. 

Now,  therefore,  the  condition  of  this  obligation  in  such,  that 
in  case  judgment  shall  be  given  against  the  said  defendant,  at 
the  said  adjourned  day,  or  at  any  time  thereafter,  and  execution 
be  issued  against  his  person,  the  said  defendant  shall  render 

8 


114  ADJOURNMENTS. 

himself  upon  such  execution  before  the  return  thereof,  or  in 
default  thereof,  if  the  said  defendant,  or  his  surety,  the  said 
Henry  Brown,  shall  pay  the  judgment  so  recovered,  with  inte- 
rest, then  this  obligation  to  be  void ;  otherwise,  of  force. 

Richard  Roe,    [l.  s.] 
Henry  Brown,  [l.  s.] 
Sealed  and  delivered  in  presence  of 
David  Long,  Justice. 
The  Justice  should  endorse  upon  the  bond,  his  approval  of 
the  surety  in  the  bond. 

4.  Second  Adjournment. 

For  the  defendant  to  entitle  himself  to  a  second,  or  further 
adjournment,  he  must  give  security,  if  required  ;  and  must,  in 
addition,  prove,  by  his  own  oath,  or  otherwise,  to  the  satisfaction 
of  the  Justice,  that  he  cannot  safely  proceed  to  trial,  for  want  of 
some  material  testimony  or  witness,  and  that  he  has  used  due 
diligence  to  obtain  such  testimony  or  Avitness.  (2  R.  S.  336, 
sec.  76.)  If,  however,  security  has  been  given  by  the  defendant 
at  any  previous  adjournment  of  the  cause,  no  new  bond  can  be 
required  at  any  second  or  subsequent  adjournment,  unless  such 
bond  be  required  by  the  Justice,  or  the  surety  in  the  prior  bond. 
(2  Cow.  Tr.  844.) 

In  addition  to  proving  the  absence  of  material  testimony,  the 
defendant  must  show  that  he  has  used  due  diligence  to  obtain 
the  absent  testimony  or  witness  ;  and  also,  that  he  expects  to 
-procure  the  witness  at  the  adjourned  day.  (2  R.  S.  336,  sec. 
76.    3  Hill,  323.) 

Where  the  defendant  shows  that  he  has  subpoenaed  a  mate- 
rial witness,  who  does  not  attend,  and  that  without  such  testi- 
mony he  cannot  safely  proceed  to  trial,  the  Justice  is  bound  to 
grant  the  adjournment.  (11  J.  R.  442.  9  id.  364.  13  id.  462.) 
Indeed,  the  Justice  may  continue  to  adjourn  from  time  to  time, 
upon  the  defendant's  making  the  ])ropcr  oath,  and  giving  secu- 
rity, provided  he  confine  himself  to  the  ninety  days,  which  his 
adjoiiniMicnts  in  the  aggregate-  cannot  exceed,  except  by  consent 
of  i)artics.     (3  J.  R.  425.) 

When  tlie  defendant  ajtjjlirs  lor  ;iii  .Mljoniinnciil,  tlic  j)laintifi' 
cannot  in  gjiucral,  recpiire  iiiin  to  state  what  he  expects  to  prove 
by  his  al).sent   witness.     It  has,  however,  been  lately  decided. 


ADJOURNMENTS. 

that  when  a  defendant's  conduct,  on  applying  for  a  second  ad- 
journment before  a  Justice,  is  such  as  to  cast  suspicion  upon 
the  bona  fides  of  the  appUcation,  and  he  refuses  to  state,  either 
on  oath  or  otherwise,  what  he  expects  to  prove  by  his  absent 
witnesses^  the  Justice  may  refuse  the  adjournment,  (3  Hill. 
323.) 

5.   General  Rules. 

When  an  adjournment  becomes  necessary,  in  consequence  ot 
the  refusal  to  testify  and  commitment  of  a  witness,  the  Justice 
is  required  to  adjourn,  at  the  request  of  the  party,  in  whose 
favor  the  witness  attended,  from  time  to  time,  until  such  witness 
shall  testify,  or  be  dead,  or  insane,  (2  R,  S,  369,  sees.  291. 
292,  293.) 

An  application  for  an  adjournment  must,  in  all  cases,  be 
denied,  unless  the  applicant,  after  having  seen  the  account  or 
demand  of  the  opposite  party,  shall  if  required,  exhibit  his 
account  or  demand,  or  make  a  statement  thereof,  as  far  as^  in 
his  po7ver,  to  the  satisfaction  of  the  Justice,     (Id.  337,  sec.  80.) 

A  party  has  no  right  to  apply  for  an  adjournment,  after  the 
ury  are  sworn  ;  nor  after  a  trial  has  begun  before  the  Justice. 
(8  J,  R.  437.)  The  Justice  may,  however,  hold  his  court  open 
for  a  short  time  to  enable  a  party  to  procure  a  material  witness, 
even  after  a  jury  have  been  empanelled  and  ballotted.  (8  J. 
R,  409.) 

An  adjournment  may  always  be  granted  without  restriction 
as  to  time,  by  the  agreement  of  parties ;  and  in  such  case,  if  the 
suit  be  commenced  by  warrant,  the  defendant  must  be  dis- 
charged from  custody.     (2  R.  S.  336,  sec.  73.) 

An  agreement  between  the  parties  to  adjourn  a  given  time, 
and  that  theUj  if  a  certain  witness  do  not  attend,  the  Justice 
may  adjourn  a  reasonable  time  to  procure  the  attendance  of  the 
witnesses,  is  a  binding  agreement,  which  neither  of  the  parties 
can  revoke,  without  the  consent  of  the  other,  and  the  Justice 
may  make  the  second  adjournment  according  to  the  agreement. 
(1  Cow.  255.)  If  the  agreement  does  not  provide  that  security 
shall  be  given,  the  Justice  may  adjourn  without  security,  this 
being  waived  by  the  silence  of  the  parties.     (Id.) 

If  a  Justice  illegally  adjourn  a  cause,  it  amounts  to  a  dis- 
continuance of  the  suit.     (8  J,  R.  391.) 


116  ADJOURNMENTS. 

But  although  an  illegal  adjournment  discontinues  the  suit, 
yet  the  defect  will  be  waived,  and  the  cause  revived,  by  the 
appearance  of  the  parties  at  the  adjourned  day,  and  their  going 
to  trial  on  the  merits.     (7  J,  R.  381.     9  id.  136.) 

If,  however,  the  defendant,  after  an  irregular  adjournment 
granted  by  a  Justice,  at  the  plaintiff's  request,  appear  at  the 
adjourned  day  and  answer  to  his  name,  but  decline  taking  any 
part  in  the  further  proceedings,  this  will  not  amount  to  a  waiver 
of  the  irregularity.     (5  Hill,  428.) 

As  already  intimated,  no  adjournment  without  the  agreement 
of  the  parties,  can  be  made  to  a  time  beyond  ninety  days  from 
the  joining  of  issue  in  the  suit.     (2  R.  S.  337,  sec.  79.) 


CHAPTER    VII. 

sOF  PROCEEDINGS  AFTER  ISSUE  JOINED,  AND  PREPARATORY  TO 

TRIAL. 

The  subjects  of  this  chapter  are  the  following : — 

1.  First  step  in  preparation  for  trial. 

2.  Attendance  of  witnesses — how  procured. 

3.  Definition  and  nature  of  subpoena,  and  how  served. 

4.  Penalty  for  neglect  to  obey  subpoena — how  enforced. 

5.  Nature  of  attachment  to  compel  attendance  of  witnesses, 
and  how  prosecuted. 

6.  Fine  for  refusal  of  witness  to  attend  and  testify — how  en- 
forced, and  duty  of  Justice  subsequent  thereto. 

7.  Proceedings  on  commission  to  examine  foreign  witnesses. 

8.  When  and  how  jury  obtained. 

9.  (Qualifications  of  jurors. 

10.  Method  of  summoning  jury. 

In  their  preparation  for  trial,  the  parties  should  see  their  re- 
spective witnesses,  and  make  themselves  familiar  with  the  ma- 
terial points  of  the  testimony.  By  the  strict  observance  of  this 
rule,  much  subsequent  inconvenience  may  be  avoided. 

Where  the  parties,  from  the  nature  of  the  cause,  have  reason 
to  suppose  that  the  trial  may  be  had  at  the  return  of  the  process, 
they  will  economize  time  by  having  their  witnesses  in  readiness 
at  the  joining  of  issue.  Yet  this  is  not,  in  general,  advisable, 
because,  until  issue  is  joined,  the  points  to  be  contested  are  fre- 
quently not  known  to  the  parties,  so  that  neither  party  can  tell 
what  testimony  or  witnesses  he  will  need. 

The  attendance  of  witnesses  and  the  production  of  the  ne- 
cessary papers  in  their  hands  are  compelled  by  a  subpcena. 

A  subpoena  is  a  mandatory  writ,  addressed  to  the  person  oi 
persons  whose  testimony  is  desired,  commanding  him  or  them, 
in  the  name  of  the  people  of  the  State,  under  a  penalty,  either 
to  appear  at  a  certain  time  and  place  specified,  before  a  Justice 
<5f  the  Peace  named,  to  testify  what  he  or  they  know  in  the  ac- 


lis  OF  PROCEEDINGS  AFTER  ISSUE  JOINED, 

tion  pending,  or  to  produce  papers  as  evidence  ijj  the  cause,  oi 
both. 

Any  Justice  of  the  Peace  may  issue  subpoenas  to  compel  the 
attendance  of  witnesses  to  give  evidence  on  any  trial  depending 
before  him,  or  any  other  Justice.  Such  subpo&na  shall  be  valid 
to  compel  the  attendance  of  a  witness  being  in  the  same  county 
where  the  cause  is  to  be  tried,  or  being  in  an  adjoining  county ; 
and  in  no  other  case.     (2  R.  S.  337,  sec.  81.) 

If  application  be  made  to  a  Justice  for  a  subpo&na  to  compel 
the  attendance  of  a  witness  before  another  Justice,  the  person 
applying  must  prove,  by  his  own  oath,  or  the  oath  of  some  other 
person,  that  a  suit  is  actually  depending  before  such  other  Jus- 
tice.    (2  R.  S.  337,  sec.  82.) 

FORM    OF    A    SUBPCENA. 

Town  of  Oxford,  ss. 

To  John  Doe,  Richard  Roe,  (fee, — greeting  r 

You  are  hereby  commanded,  in  the  name  of  the  people  of 
the  state  of  New  York,  to  appear  before  me,  the  undernamed 
Justice  of  the  Peace  of  Oxford,  in  the  county  of  Chenango,  at 
my  office  in  Oxford  aforesaid,  on  the  15th  day  of  June  instant^ 
at  ten  o'clock  in  the  forenoon,  to  give  evidence  in  a  certain  ac- 
tion on  contract,  then  and  there  to  be  tried  before  me,  between 
John  Smith,  plaintiff,  and  Peter  Pi'ay,  defendant,  on  the  part  of 
the  plaintiff  (or  defendant.)  And  this  you,  or  any  of  you,  are 
not  to  omit,  under  the  penalty  of  ten  dollars  for  you  and  every 
of  you.  Given  under  my  hand,  at  Oxford  aforesaid,  this  12th 
day  of  June.  1849. 

David  Long,  Justice. 

If  the  witness  have  in  his  possession  any  deeds  or  writings 
which  it  may  be  necessary  to  produce  on  the  trial,  he  must  be 
.served  with  a  subpoena,  commanding  him  to  bring  such  papers 
wiili  him.  U,  liowcver,  he  is  about  to  be  subpoenaed  to  appear 
and  testify,  instead  of  issuing  two  subpoenas,  it  is  customary  to 
add  to  the  common  subpffiua  the  following  special  clause  : — 

'•And  you  arc  further  rc(iuired  to  bring  with  you"  (here  insert 
a  description  nf  the  writing  wanted,  so  that  the  witness  may 
clearly  know  what  is  intended)  "to  be  produced  and  used  in 
nvidcnce  on  said  trial." 

A  general  clause  "  to  produce  all  letters,  papers  and  docu- 


AND  PREPARATORY  TO  TRIAL.  119 

ments,  touching  or  concerning  tlie  matter  in  dispute,"'  would  be 
indefinite,  and  insufficient.  The  papers  should  be  described. 
(Ry.  &  Moody's  N.  P.  Cas.  341.) 

The  subpoena  may  contain  as  many  names  as  the  party  may 
wish  to  have  inserted ;  and  after  the  Justice  has  inserted  the 
name  of  one  witness,  the  party  may  insert  such  others  as  he 
may  please.     (Holt's  N.  P.  R.  326.) 

A  subpoena  may  be  served  either  by  a  constable,  the  party  to 
the  suit,  or  some  third  person.  The  mode  of  service  is  either 
by  reading  the  subpoena  to  the  witness,  or  stating  its  contents  to 
him,  and  by  paying  or  tendering  the  fees  allowed  by  law  for 
one  day's  attendance.     (2  R.  S.  337,  sec,  83.) 

Although  not  required  by  the  statute,  yet  as  a  matter  of  con- 
venience to  the  witness,  a  copy  of  the  subpoena  should  be  left 
with  him. 

The  service  must  be  personal  on  the  witness.  If  the  witness 
is  a  married  woman,  still  the  subpoena  must  be  served  upon  her 
personally,  and  a  tender  of  witness'  fees  made  to  her,  and  not  to 
her  husband.  (1  J.  R.  430.)  The  subpoena  should  be  served  a 
reasonable  time  before  the  day  appointed  for  the  trial ;  other- 
wise the  witness  will  not  be  bound  to  attend.  (Penning  on 
Small  Causes,  143.)  And  in  no  case  can  a  witness  be  com- 
pelled to  travel  on  Sunday.  (13  Wend.  49.)  If  the  witness 
should  attempt  to  evade  the  hearing  of  the  subpoena,  the  service 
would  still  be  good,  although  it  was  neither  read  nor  its  contents 
stated  to  him.     (Dowl.  &  Ryl.  233.) 

The  witness  need  not  obey  the  subpoena,  unless  his  regular 
fees  are  tendered  to  him  at  the  time  of  serving  the  subpoena. 
(2  R.  S.  337,  83.)  And  if  he  appears  in  court,  he  need  not  tes- 
tify until  his  fees  are  actually  paid  or  tendered,  (13  East,  15. 
16.)  The  amount  of  such  fees  to  a  witness  from  the  same  count3^ 
is  twelve  and  a  half  cents,  and  to  a  witness  from  any  other  place 
than  the  same  county,  twenty-five  cents  for  every  day's  actual 
attendance,  (2  R.  S.  360.)  Where  a  witness  has  been  subpoe- 
naed,  and  his  fees  paid,  by  one  of  the  parties,  the  other  party, 
on  subpoenaing  the  same  witness,  need  not  tender  him  any  fees, 
(1  Cow.  Tr.  860.) 

It  has  been  held,  that  though  a  person  stand  by  in  court,  yet 
if  he  has  not  been  duly  subpoenaed,  he  cannot  be  compelled  to 
testify.  Also,  that  a  witness  is  entitled  to  his  fees,  though  he 
attend  and  testify  without  a  subpoena.   (1  Bl.  R.  36.   15  J.  R.  260.) 


120  OF  PROCEEDINGS  AFTER  ISSUE  JOINED, 

If  the  witness  does  not  obey  the  subpoena,  and  it  appears  to 
the  satisfaction  of  the  Justice,  by  proof  made  before  him,  that 
the  witness  has  refused  or  neglected  to  attend,  in  conformity 
to  such  subpcena,  without  just  cause,  and  the  party  in  whose 
behalf  such  witness  shall  have  been  subpoenaed,  shall  make 
oath  that  the  testimony  of  such  witness  is  material,  the  Justice 
shall  have  power  to  issue  an  attachment,  to  compel  the  attend- 
ance of  such  Avitness.     (2  R.  S.  338,  sec.  84.) 

The  proof  required  to  obtain  an  attachment  for  a  witness, 
may  be  made  by  the  affidavit  of  the  party  in  the  suit,  applying 
lor  such  attachment,  or  by  other  competetit  testimony  to  the 
satisfaction  of  the  Justice^  before  whom  such  suit  is  pending. 
(Sess.  Laws,  1834,  chap.  235.)  If  the  service  was  made  by  a 
constable,  his  return  would  be  evidence  of  the  fact.  If  made 
by  a  third  person,  it  may  be  proved  by  parol. 

FORM    OF    AFFIDAVIT    FOR    ATTACHMENT  AGAINST  A  WITNESS- 

In  Justices''  Court,  before  David  Long,  Justice, 

John  Smith      i 
against  > 

Peter  Pray,    j 

Chenango  County,  ss.  —John  Smith,  plaintiff  in  this  cause, 
being  duly  sworn,  says  that  on  the  12th  day  of  June  instant, 
he  served  at  the  town  of  Oxford,  in  the  county  aforesaid,  the 
annexed  subpoena  on  Richard  Roc,  a  witness  therein  named,  by 
reading  the  same  (or  stating  the  contents  thereof,)  to  him,  at  the 
same  time  paying  (or  tendering)  to  him  the  sum  of  twelve  and 
a  half  cents. 

Deponent  further  says  that  the  testimony  of  the  said  Richard 
Koe,  is  material  to  deponent  in  the  trial  of  this  cause ;  and  fur- 
ther, that  the  said  Richard  Roc  has  neglected  to  attend  the  trial 
of  the  said  cause,  as  he  was  commanded,  in  and  by  the  said 
subpoena. 

John  Smith. 
Sworn  Ijiiforc  me,  this  \'}\.\\  day  of 
June,  IHIO, 

David  Lono,  Justice. 

(f  the  suhpcrna  was  served  by  a  constable,  liis  return  should 
be  endorsed  on  the  subpoma  tlius: — 
"The  within  subpoina  personally  served  on  Richard  Roe,  a 


AND  PREPARATORY  TO  TRIAL.  121 

witness  therein  named,  on  the  12th  day  of  June,  1849,  and  his 
fees  paid,  (or  tendered.) 

"  William  Cooke,  Constable." 

If  a  third  person  served  the  subpoena,  the  Justice  may  ad- 
minister the  following  oath  : — 

"  You  swear  that  you  will  true  answers  make  to  all  such 
questions  as  shall  be  put  to  you,  touching  the  service  of  the 
subpoena,  in  a  cause  now  pending  before  me,  between  John 
Smith  plaintiff,  and  Peter  Pray  defendant,  so  help  you  God," 

Notwithstanding  the  service  of  the  subpoena  may  be  proved 
by  a  third  person,  the  plaintiff  is  still  required  to  make  an  affi- 
davit that  the  testimony  of  the  absent  witness  is  material.  (2 
R.  S.  338,  sec.  84.     Sess.  Laws,  1834,  chap.  235.) 

FORM    OF    ATTACHMENT    TO    COMPEL    THE     ATTENDANCE    OF    A 

WITNESS. 

Chenango  County,  ss. 

The  people  of  the  State  of  New  York  to  any  constable  of 
said  county,  greeting  : 

Whereas  it  has  been  proved  to  the  satisfaction  of  the  under- 
named Justice  of  the  Peace  of  Oxford,  in  the  county  of  Che- 
nango, that  Richard  Roe  has  been  duly  subpoenaed  to  attend  on 
this  day,  at  ten  o'clock  in  the  forenoon,  at  his  office  in  Oxford 
aforesaid,  as  a  witness,  in  behalf  of  John  Smith,  in  an  action 
depending  before  the  said  Justice,  and  then  and  there  appointed 
to  be  tried,  wherein  the  said  John  Smith  is  plaintiff,  and  Peter 
Pray  defendant ;  and  that  said  Richard  Roe  has  neglected, 
without  just  cause,  to  attend  as  a  witness,' in  obedience  to  such 
subpoena ;  and  the  said  John  Smith  having  made  affidavit  be- 
fore the  said  Justice  that  the  testimony  of  the  said  Richard  Roe 
is  material  to  said  cause  : 

We  hereby  command  you,  to  attach  the  body  of  the  said 
Richard  Roe,  and  take  him  forthwith,  before  the  said  Justice  at 
his  office  in  Oxford  aforesaid,  to  give  evidence  in  said  cause ; 
and  also  to  answer  all  such  matters  as  shall  be  objected  against 
him  for  having  neglected  to  attend  the  trial  of  the  said  cause, 
as  a  witness  ;  and  have  you  then  and  there  this  precept. 

Given  under  the  hand  of  the  said  Justice,  this  15th  day  of 
June,  1849. 

David  Long,  Justice, 


122  OF  PROCEEDINGS  AFTER  ISSUE  JOINED, 

If  the  attachment  is  apphed  for  by  the  defendant,  the  requi- 
site change  in  the  preceding  form,  may  be  readily  made. 

Tire  attachment  must  be  executed  in  the  same  manner  as  a 
warrant.  (2  R.  S.  338,  sec.  85.)  If  the  witness  be  near  the 
place  of  trial,  so  that  the  attachment  may  be  served  and  re- 
turned in  a  reasonable  time,  it  may  be  made  returnable  forth- 
with, and  the  Justice  may  continue  the  cause  open  until  the  at- 
tachment is  served  and  returned ;  but  if  the  witness  be  at  such 
a  distance  from  the  place  of  trial,  that  the  attachment  cannot 
be  served  and  returned  in  a  reasonable  time  for  continuing  the 
cause  open,  the  proper  course  would  be  to  adjourn  the  trial  to 
such  time  as  would  be  sufficient  for  the  service  and  return  of 
the  attachment,  and  to  make  the  attachment  returnable  at  that 
time.     (Vide  Edw.  Tr.  3d  ed.  79.) 

Unless  the  delinquent  can  show  a  reasonable  and  satisfactory 
cause  for  his  default,  he  will  be  liable  for  the  costs  of  issuing 
and  serving  the  attachment ;  if  his  excuse  be  satisfactory,  the 
party  requiring  the  attachment,  must  pay  the  costs  of  issuing 
and  service.  (2  R.  S.  338,  sec.  85.)  In  case  the  Justice  deter- 
mines that  the  witness  must  pay  the  costs,  they  may  be  col- 
lected of  him  by  a  suit,  in  the  name  of  the  party  requiring  the 
attachment.     (Edw.  Tr.  3d  ed.  79.) 

If  a  witness,  on  being  duly  subpcEuaed,  do  not  attend,  or  if 
attending  shall  refuse  to  testify,  he  shall  forfeit  for  the  use  of  the 
poor  of  the  town,  for  any  such  non-appearance  or  refusal,  (un- 
less some  reasonable  cause  or  excuse  shall  be  shown  on  his 
oath  or  the  oath  of  some  other  person,)  such  fine,  not  less  than 
sixty-two  and  a  half  cents,  nor  more  than  ten  dollars,  as  the 
Justice  before  whom  prosecution  therefor  shall  be  had,  shall 
think  reasonable  to  impose.  (2  R.  S.  338,  sec.  86.)  The 
witness,  besides  the  fine,  is  also  liable  to  the  party  in  whose  be- 
half he  was  subpoenaed,  for  all  damages  which  such  party  may 
sustain  by  reason  of  such  non-appearance  or  refusal.  (Id.  338, 
sec.  91.) 

The  fine  may  be  imposed  by  the.  Justice,  if  the  witness  be 
present  and  has  an  opportunity  of  being  heard,  against  the  im- 
position thereof,  (Id.  sec.  87.)  If,  therefore,  the  witness  is 
present,  the  Justice  should  call  upon  him,  to  show  cause,  why 
the  fine  should  not  be  imposed,  and  if  no  good  cause,  on  his 
own  oath,  or  th<r  o.uji  of  some  other  person  be  shown,  he  should 


AND  PREPARATORY  TO  TRIAL.         -   123 

impose  a  fine  forthwith,  on  proof  that  the  subpoena  has  been 
served. 

If  the  witness  is  absent,  as  if  the  proceeding  is  instituted  be- 
fore a  justice  other  than  the  one  before  whom  the  suit  in  which 
the  penalty  was  incurred,  was  depending,  a  summons  must  be 
issued  against  the  defaulting  witness,  commanding  him  to  ap- 
pear before  the  said  Justice,  at  a  certain  time  and  place,  to  show 
cause  why  he  should  not  be  fined. 

FORM    OP    SUMMONS    AGAINST    WITNESS. 

Chenango  County^  ss. 

To  any  constable  of  the  said  county,  greeting : 
You  are  hereby  commanded,  in  the  name  of  the  people  of  the 
State  of  New  York,  to  summon  Richard  Roe  to  appear  before 
me,  the  undernamed,  a  Justice  of  the  Peace  of  the  said  county, 
at  my  office,  in  the  town  of  Oxford,  of  the  said  county,  on  the 
18th  day  of  June  instant,  at  two  o'clock  in  the  afternoon,  to 
show  cause  why  he  should  not  be  fined  according  to  law,  for 
•his  non-attendance  as  a  witness  before  me,  the  said  Justice,  \or 
before  Henry  Strongs  Esq.^  a  Justice  of  the  Peace  in  and  for 
the  said  county,]  at  my  office,  in  the  said  town,  on  the  15th  day 
of  June  instant,  to  give  evidence  in  a  certain  cause  then  de- 
pending before  me,  [or  before  Henry  Strong,  Esq.,  such  Jus- 
tice as  aforesaid,]  in  which  John  Smith  was  plaintiff  and  Peter 
Pray  defendant,  on  the  part  of  the  plaintiff  [or  defendant] ;  and 
have  you  then  there  this  process.  Given  under  my  hand  at 
Oxford,  aforesaid,  this  16th  day  of  June,  1849. 

David  Long,  Justice. 

The  Justice  imposing  any  fine,  shall  make  up  and  enter  in 
his  docket,  a  minute  of  the  conviction  and  of  the  cause  thereof, 
and  the  same  shall  be  deemed  a  judgment  in  all  respects,  at  the 
suit  of  the  overseers  of  the  poor  of  the  town.  (2  R.  S.  338,  sec.  88.) 

minute  of  conviction. 

Chenango  County,  ss. — Be  it  remembered,  that  on  the  18th 
day  of  June,  1849,  Richard  Roe  is  convicted  before  me,  and 
fined  in  the  sum  of  eight  dollars  and  fifty  cents,  besides  one 
dollar  and  fifty  cents  costs,  for  non-attendance  as  a  witness  to  give 
evidence  before  me,  [or  before  Henry  Strong,  Esq.,  one  of  the 


124  OF  PROCEEDINGS  AFTER  ISSUE  JOINED, 

Justices  of  the  Peace  of  the  said  cou7iti/,]  at  my  [or  his]  office, 
in  the  town  of  Oxford,  on  the  15th  day  of  June  instant,  in  a  cer- 
tain cause  then  and  there  depending  before  me,  [or  before  the 
said  Justice,]  in  which  John  Smith  was  plaintiff  and  Peter  Pray 
defendant. 

David  Long,  Justiee. 

Upon  the  imposition  of  the  tine  and  default  of  payment,  the 
Justice  must  forthwith  issue  the  following  execution : — (2  R.  S. 
338,  sec.  89.) 

FORM    OF    EXECUTION. 

Chenango  County,  ss. 

To  any  constable  of  the  said  county — greeting  : 

Whereas,  Richard  Roe,  was  on  the  18th  day  of  June,  instant, 
convicted  and  fined  by  me,  the  undernamed  Justice  of  the  Peace 
of  Chenango  county  aforesaid,  the  sum  of  eight  dollars  and  fifty 
cents,  besides  one  dollar  and  fifty  cents  costs,  for  non-atten- 
dance as  a  witness  to  give  evidence  before  me,  the  said  Justice, 
[or  before  Henry  Strong,  Esq.,  one  of  the  Justices  of  the  Peace- 
of  the  said  county,]  at  my  [or  Jus]  office,  in  the  town  of  Oxford, 
in  said  county,  on  the  15th  instant,  in  a  certain  cause  then  and 
there  depending  before  me,  the  said  Justice,  [or  before  Henry 
Strong,  Esq.,  Justice  as  aforesaid,]  in  which  John  Smith  was 
plaintiff",  and  Peter  Pray,  defendant,  a  record  of  which  convic- 
tion and  of  the  cause  thereof  has  been  duly  made  and  entered 
in  the  docket  of  the  undernamed  ;  and  whereas,  the  said  Richard 
Roc  has  neglected  to  pay  the  said  fine  and  costs  : 

You  are  therefore  hereby  commanded,  in  the  name  of  the 
people  of  the  State  of  New  York,  to  levy  the  said  fine  and  costs 
of  the  goods  and  chattels  of  the  said  Richard  Roc,  and  for  want 
thereof  to  take  and  convey  the  said  Richard  Roe  to  the  jail  of 
the  said  couty,  there  to  remain  until  he  shall  pay  such  fine  and 
costs  ;  and  the  keeper  thereof  is  required  to  keep  the  said  Rich- 
ard Roc  in  close  custody  in  said  jail,  until  the  fine  and  costs 
aforesaid  Ijo  paid,  or  until  thirty  days  after  the  commencement 
of  his  imprisonment,  (jiivcn  under  my  hand,  at  Oxford  afore- 
said, this  J  bill  day  of  June,  1849. 

David  Long,  Justice. 

WJKii  iIk'  imnM-y  is  (((llcctcd  in  such  execution,  the  Constable 
Bhall  rclnrn  ilif  same  to  llie  .fiislice,  and  such  Justice  shall  pay 


AND  PREPARATORY  TO  TRIAL.  125 

over  the  amount  of  the  fine  imposed  to  the  overseers  of  the  poor 
of  the  town,  for  the  use  of  the  poor.     (2  R.  S.  338,  sec.  90.) 

A  suit  will  not  lie  against  a  Justice  for  a  judicial  act.  The 
merits  of  a  fine  imposed  upon  and  collected  of  a  witness  for  re- 
fusing to  be  sworn,  or  for  any  other  contempt,  (the  Justice  hav- 
ing jurisdiction  of  the  matter,)  cannot,  therefore,  be  investigated 
before  another  Justice.     (3  Caines,  170.) 

Of  the  Commission  to  Examine  Foreign   Witnesses} 

Whenever  an  issue  of  fact  shall  have  been  joined  in  any  ac- 
tion or  suit  before  a  Justice  of  the  Peace,  and  it  shall  appear  on 
the  application  of  either  party,  that  any  witness  not  residing 
within  the  county  where  said  suit  is  pending,  or  the  county  ad- 
joining, is  material  in  the  prosecution  or  defence  of  such  action 
or  suit,  the  said  Justice  may  award  a  commission  to  one  or  more 
competent  persons,  authorizing  them  or  any  one  of  them,  to  ex- 
amine such  witness  on  oath,  upon  the  interrogatories  settled  by 
the  said  Justice,  and  certified  by  his  approbation  entered  or  en- 
dorsed thereon,  or  by  the  written  agreement  or  assent  of  the  par- 
ties, annexed  to  such  commission,  to  take  and  certify  the  depo- 
sitions of  such  witness,  and  to  return  the  same,  according  to  the 
directions  given  with  such  commission,  in  which  commission 
both  parties  may  unite.     (2  R.  S.  365,  sec.  257.) 

The  commission  may  be  issued  in  behalf  of  either  the  plain- 
tiff or  defendant ;  or  both  parties  may  unite  in  the  commission. 
It  must,  however,  be  made  to  appear  by  the  oath  of  the  party, 
or  by  other  competent  testimony,  that  the  Avitness  whose  testi- 
mony is  desired,  resides  in  some  place  other  than  the  county 
where  the  suit  is  pending,  or  the  adjoining  county,  and  that  his 
testimony  is  material  to  the  prosecution  or  defence  of  the  action. 

(Id.) 

If  either  party  can  procure  the  personal  attendance  of  his  ab- 
sent witness  within  the  time  that  an  adjournment  may  be 
granted,  he  need  not  issue  a  commission.  The  defendant  may 
frequently  dispense  with  the  necessity  of  a  commission  ;  for,  if 
in  addition  to  the  proof  of  absence  and  materiality,  he  swears 
that  he  expects  to  be  able  to  procure  the  personal  attendance  of 
his  witness  within  ninety  days,  he  is  entitled  to  an  adjournment. 
Not  so,  however,  with  the  plaintiff,  who  is  not,  except  by  the 


126  OF  PROCEEDINGS  AFTER  ISSUE  JOINED, 

consent  of  the  defendant,  entitled  to  an  adjournment  beyond 
eight  days. 

The  commission  may  be  granted  at  any  time,  upon  proof  that 
due  notice  of  such  apphcation  for  such  commission  has  been 
served  on  the  adverse  party  at  least  six  days  before  the  time  of 
making  such  application  ;  but  the  issuing  of  such  commission 
shall  not  postpone  the  trial  beyond  the  time  of  ninety  days  from 
the  joining  of  issue  in  the  suit.     (2  R.  S.  365,  sec.  258.) 

FORM    OP    NOTICE    OF    APPLICATION    FOR    A    COMMISSION. 

I?i  Justices^  Court,  before  David  Lo7ig,  Justice. 
John  Smith      ^ 
against  > 

Peter  Pray.     ) 

Si]. : — Please  take  notice  that  I  shall  make  an  application  to 
the  above  named  Justice,  at  his  office  in  the  village  of  Oxford, 
on  the  25th  day  of  June  instant,  for  a  commission  to  be  directed 
to  Alvin  Hunt,  Esq.,  of  the  city  of  Rochester,  to  examine  Peter 
Brown  of  the  same  place,  a  witness  in  the  above  entitled  cause, 
upon  interrogatories  to  be  annexed  to  such  commission. 

John  Smith,  Plaintiff. 
To  Peter  Pray,  Defendant. 

Oxford,  June  XSth,  1849. 

At  the  time  and  place  mentioned  in  the  notice,  if  the  opposite 
party  do  not  appear,  either  in  person  or  by  attorney,  the  Justice 
should  require  proof  of  service  of  the  notice  in  due  time.  This 
proof  may  be  by  affidavit  or  parol. 

The  Justice  must  require  of  the  party  applying  for  a  commis- 
sion, to  state  under  oath,  that  the  absent  witness  whose  testi- 
mony is  desired,  does  not  reside  in  the  county  where  the  suit  is 
pending,  or  the  county  adjoining,  ;i!id  that  his  testimony  is  ma- 
terial to  the  ])rosecuti()n  or  defence  of  the  action,  as  the  case 
may  Ix".  Il"th(!  party  aslcing  lor  the  commission,  state  the  facts 
he  expects  to  prove  whicli  facts  are  admitted  by  the  opposite 
party;  or  should  the  facts  as  stated,  l)c  wholly  immaterial  to 
the  issue,  ihc  Justice  should  refuse  the  application. 


AND  PREPARATORY  TO  TRIAL.  127 


FORM    OF    COMMISSION    TO    EXAMINE    WITNESS. 

Chenango  County,  ss. 

To  Alvin  Hunt,  Esq.,  of  the  city  of  Rochester  : 

Whereas,  it  appears  to  me,  the  undernamed,  a  Justice  of  the 
Peace  of  Oxford,  in  the  county  of  Chenango,  that  Peter  Brown 
of  Rochester,  is  a  material  witness  in  a  cause  now  pending  be- 
fore me,  between  John  Smith  plaintiff,  and  Peter  Pray  defend- 
ant :  now,  therefore,  in  pursuance  of  the  statute  in  such  case 
made  and  provided,  I  do  hereby  appoint  you  commissioner  to 
examine  the  said  witness  on  the  interrogatories  hereunto  an- 
nexed, on  oath  to  be  taken  before  you,  and  to  cause  such  exam- 
ination to  be  reduced  to  writing  and  signed  by  such  witness 
and  yourself,  and  then  return  the  same  annexed  hereto  to  me, 
enclosed  under  your  seal. 

Given  under  my  hand,  at  the  village  of  Oxford,  the  25th  day 
of  June,  1849. 

David  Long,  Justice. 

The  commissioner  has  the  same  power  to  issue  subpoenas, 
swear  witnesses,  and  compel  their  attendance  as  Justices  of  the 
Peace.     (2  R.  S.  365,  sec.  261.) 

The  interrogatories  to  be  annexed  to  the  commission,  must 
embrace  the  subjects  of  inquiry,  and  must  be  governed  by  the 
rules  applicable  to  oral  examinations.  The  joarties  may,  how- 
ever, insert  a  general  interrogatory  whether  the  witness  knows  of 
any  other  matter  or  thing  material  to  the  party,  whicli  general 
interrogatory  must  be  answered,  or  the  deposition  cannot  be 
read.     (2  Cow.  R.  872.) 

FORM    OF    INTERROGATORIES    AND    CROSS-INTERROGATORIES. 
TO    BE    ANNEXED    TO    THE    COMMISSION. 

"  Interrogatories  to  be  administered  to  Peter  Brown,  a  witness 
to  be  produced,  sworn  and  examined,  on  the  part  of  the  plain- 
tiff, in  the  cause  mentioned  in  the  annexed  commission. 

First :  Do  you  know  the  parties,  plaintiff  and  defendant 
named  in  the  annexed  commission,  or  either  of  them  ?  When 
did  you  first  become  acquainted  with  them,  or  either  of  them  ? 

Second :  Since  you  have  known  the  parties,  or  either  of  them, 
have  you  had  any  business  transactions  with  them,  or  either  of 
them  ?     If  so,  what  'I 


128  OF  PROCEEDINGS  AFTER  ISSUE  JOINED, 

Third  :  Are  you  acquainted  with  the  hand-writing  of  Peter 

Pray  ? 

Lastly^  Do  you  Itnow  any  other  matter  or  thing  touching  the 
matters  in  question,  that  may  tend  to  the  benefit  or  advantage 
of  the  plaintiff?  If  yea,  declare  fully  and  at  large  as  if  you 
had  been  fully  interrogated  thereto." 

CROSS-INTERROGATORIES. 

Interrogatories  to  be  administered  to  the  said  Peter  Brown, 
bv  way  of  cross-examination. 

\The  cross-interrogatories  ivill  of  course  depend  upon  the  cir- 
cumstances of  each  case.] 

If  the  parties  agree  upon  interrogatories,  they  should  signify 
this  fact  by  the  following  written  assent,  to  be  annexed  to  the 
commission  : 

"  The  undersigned,  the  parties  to  the  suit  named  in  the  an- 
nexed commission,  agree  that  the  interrogatories  hereto  annexed, 
may  be  propounded  to  the  witness  therein  named,  by  the  com- 
missioner to  whom  the  annexed  commission  is  directed. 

John  Smith. 
Peter  Pray." 

If  the  parties  cannot  agree  upon  the  interrogatories  they  must 
go  before  the  Justice  and  have  them  settled  by  him.  Where- 
upon, the  Justice  must  endorse  upon  them  his  approval,  thus  : 

"  The  within  interrogatories,  on  the  part  of  the  plaintiff,  and 
the  cross  interrogatories  on  the  part  of  the  defendant,  are  hereby 
approved  by  me. 

David  Long,  Justice. 

Oxford,  June  25th,  1849. 

The  commission  must  be  directed  to  the  commissioner,  at  his 
place  of  residence,  and  deposited  in  the  post  office,  and  the  post- 
age paid,  unless  the  parties  agree  upon  some  other  mode  of  con- 
veyance. 

I'he  persons  to  wliom  such  conmiission  shall  be  directed,  or 
any  one  of  them,  unless  otherwise  expressly  directed  therein, 
shall  execute  llie  same  as  follows : — (2  11.  S.  490,  sec.  17.) 

"  1.  'J'liey,  or  ajiy  r)ii(j  of  (hem,  sliall  publicly  administer  an 
oath  to  tlio  witncs.ses  jiamod  in  the  commission,  that  the  answers 


AND  PREPARATORY  TO  TRIAL.  129 

given  by  such  witnesses  to  the  interrogatories  proposed  by  them, 
shall  be  the  truth,  and  nothing  but  the  truth. 

"  2.  They  shall  cause  the  examination  of  each  witness  to  be  re- 
duced to  writing,  and  to  be  subscribed  by  him,  and  certified  by 
such  of  the  commissioners  as  are  present  at  the  taking  of  the 
same. 

"  3.  If  any  exhibits  are  produced  and  proved  before  them,  they 
shall  be  annexed  to  the  depositions  to  which  they  relate,  and 
shall,  in  like  manner,  be  subscribed  by  the  witness  proving  the 
same,  and  shall  be  certified  by  the  commissioners. 

"  4.  The  commissioners  shall  subscribe  their  names  to  each 
sheet  of  the  depositions  taken  by  them  ;  they  shall  annex  all  the 
depositions  and  exhibits  to  the  commission,  upon  which  their 
return  shall  be  endorsed  ;  and  they  shall  close  them  up  under 
their  seals,  and  shall  address  the  same,  when  so  closed,  to  the 
Justice  from  whom  the  commission  issued,  as  shall  have  been 
directed  on  the  commission,  at  his  place  of  residence. 

"5.  If  there  is  a  direction  on  the  commission  to  return  the 
same  by  mail,  they  shall  immediately  deposit  the  packet  so  di- 
rected in  the  nearest  post  office, 

^'  6.  If  there  be  a  direction  on  the  commission  to  return  the 
same  by  an  agent  of  the  party  who  sued  out  the  same,  the  packet 
so  directed  shall  be  delivered  to  such  agent 

'•  A  copy  of  this  section  shall  be  annexed  to  every  commission 
authorized  by  this  article." 

FORM    OF    A    commissioner's    SUMMONS    TO    A    WITNESS. 

Monroe  County,  ss. — Whereas,  the  undernamed  has  received 
a  commission  issued  by  David  Long,  Esquire,  a  Justice  of  the 
Peace  of  the  County  of  Chenango,  directed  to  me  for  the  exa- 
mination of  Peter  Brown,  a  witness  in  a  cause  depending  before 
the  said  Justice,  between  John  Smith,  plaintiff,  and  Peter  Pray, 
defendant :  you,  the  said  Peter  Brown,  are  therefore  required  to 
be  and  appear  before  me,  the  said  commissioner,  at  my  dwelling 
house,  on  the  1st  day  of  July  next,  then  and  there  to  be  exa- 
mined, and  to  testify  the  truth  according  to  the  best  of  your 
knowledge,  on  behalf  of  the  said  plaintiff,  (or  defendant,)  and 
herein  you  are  not  to  fail.     Rochester,  June  26th,  1849. 

Alvin  Hunt. 
9 


130  OF  PROCEEDINGS  AFTER  ISSUE  JOINED, 


FORM    OF    OATH    TO    WITNESS    BY    COMMISSIONER. 

You  do  swcav  that  the  answers  to  be  given  by  you  to  the 
interrogatories  to  be  proposed  to  you  by  me,  in  a  cause  depend- 
ing before  David  Long,  Esq.,  a  Justice  of  the  Peace  of  the 
county  of  Clienango,  betv/een  John  Smith,  plaintiff,  and  Peter 
Pray,  defendant,  wherein  I  have  been  appointed  by  the  said 
Justice  a  commissioner,  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth,  so  help  you  God. 

FORM    OF    CAPTION    OF    DEPOSITION. 

Deposition  of  Peter  Brown,  a  witness  produced,  sworn  aad 
examined  on  oath  before  me,  Alvin  Hunt,  at  my  dwelling  house 
ill  the  city  of  Rochester,  on  the  1st  day  of  July,  1849,  by  virtue 
of  a  commission  issued  by  David  Long,  Esquire,  a  Justice  of 
'  the  Peace  of  the  county  of  Chenango,  and  directed  to  me,  Alvin 
Hmit,  for  the  examination  of  the  said  Peter  Brown,  a  witness 
in  a  cause  depending  before  the  said  Justice,  between  John 
Smith,  plaintiff,  and  Peter  Pray,  defendant. 
The  said  Peter  Brown  deposes  as  follows  : — 
To  the  first  interrogatory  this  deponent  says,  &c. 
To  the  second  interrogatory,  this  deponent  says,  (fcc. 
To  the  third  interrogatory.  &c. 

Peter  Brown. 
Subscribed  and  sworn  this  1st  day 
of  July,  1849,  before  me. 

Alvin  Hunt,  Commissioner. 

If,  upon  issuing  the  commission,  the  Justice  omit  to  direct  the 
manner  it  shall  be  returned,  the  depositions  cannot  be  read  in 
evidence.     (3  Hill,  495.) 

The  deposition  and  testimony  taken  by  virtue  of  the  commis- 
sion, is  entitled  to  the  same  weight,  on  the  trial  as  testimony 
in  the  cause,  as  if  the  witness  were  personally  examined  before 
the  Justice.     (Sess.  Laws,  1838,  p.  232,  sec.  4.) 

Jury. 

If  either  parly  wishes  a  trial  by  jmy,  ho  nuist  demand  the 
same.  (2  R.  S.  339,  sec.  92.)  Id.  sec.  94.)  The  demand  may 
be  made  at  any  time  after  the  joining  of  issue,  and  before  the 


AND  PREPARATORY  TO  TRIAL.  13 £ 

Justice  shall  have  proceeded  to  an  investigation  of  the  merits  of 
tlic  cause  by  the  examination  of  a  witness,  or  the  hearing  of 
any  other  testimony.     (Id.) 

A  jury  cannot  be  awarded  previous  to  the  joining  of  issue, 
(3  Caines,  219.)  With  regard  to  the  inquiry  into  the  merits  of 
the  cause,  the  mere  inspection,  by  the  Justice,  of  papers  in  the 
cause,  will  not  bo  such  an  investigation  of  the  merits  as  to  pre- 
clude the  demand  of  a  jury.  (I  J.  R.  142.)  Where,  however, 
the  defendant  avowed  himself  ready  to  proceed  to  trial — the 
Justice  directed  the  plaintiff  to  proceed — the  defendant,  upon 
the  inquiry  of  the  plaintiff,  admitted  part  of  the  plaintiff's  de- 
mand, and  while  the  Justice  was  swearing  a  witness,  the  dc- 
fisndant  demanded  a  jury,  the  demand  was  held  too  late.  (1 
Cow.  235.) 

The  parties  may  agree  upon  any  number  of  jurors  less  than 
six,  to  try  the  cause ;  and  in  that  case,  the  Justice  shaU  direct 
the  summoning  of  double  the  number  so  agreed  upon.  (2  II. 
S.  339,  sec.  96.)  If  the  parties  make  no  agreement  limiting  the 
number  of  jurors,  twelve  must  be  summoned.     (Id.  sec.  95.) 

The  following  are  the  qualificalions  of  jurors : — (Id.  508, 
sec.  13.) 

1.  Male  inhabitants  of  the  town  in  which  the  Justice  resides. 
and  where  the  court  is  held,  not  exempt  from  serving  on  juries. 

2.  Of  the  age  of  twenty-one  years  or  upwards,  and  under 
sixty  years  old. 

3.  Who  arc,  at  the  time,  assessed  for  personal  property  be- 
longing to  them,  in  their  own  right,  to  the  amount  of  two  hun- 
dred and  fifty  dollars,  or  who  shall  have  a  freehold  estate  in  real 
property  in  the  county,  belonging  to  them  in  their  own  right,  or 
in  the  right  of  their  wives,  to  the  value  of  one  hundred  and  fifty 
dollars. 

4.  In  the  possession  of  their  natural  faculties,  and  not  infirm 
or  decrepit. 

5.  Free  from  all  legal  exceptions,  of  fair  character,  of  ap- 
proved integrity,  of  sound  judgment,  and  well  informed. 

The  statute  directs  the  court  to  discharge  from  serving  on  a 
jury  the  following  persons,  who  should  not  therefore  be  sum- 
moned : — (2  R.  S.  511,  sec.  33.) 

1.  Those  who  haA^e  not  the  property  qualification,  or  are  not 
qualified  in  respect  to  age,  as  above  mentioned. 

2.  A  non-commissioned  officer,  musician  or  private  of  any 


132  OF  PROCEEDINGS  AFTER  ISSUE  JOINED, 

uniformed  company  or  troop,  who  is  duly  equipped  and  uni- 
formed according  to  law,  and  who  shall  claim  such  exemption. 
The  evidence  of  this  exemption  can  only  he  given  by  the  certi- 
ficate of  the  commanding  officer  of  the  troop,  dated  within  three 
months  of  the  time  of  presenting  the  same,  and  the  signature 
nmst  be  verified  by  oath. 

3.  A  member  of  any  company  of  fireman,  duly  organized 
according  to  law. 

4.  Any  person  in  the  actual  employment  of  any  glass,  cotton, 
linen,  woolen  or  iron  manufacturing  company,  by  the  year, 
month  or  season. 

5.  A  superintendent,  engineer  or  collector  of  any  canal,  au- 
thorized by  the  laws  of  this  State,  any  portion  of  which  shall 
be  actually  constructed  and  navigated. 

6.  A  minister  of  the  gospel,  or  teacher  in  any  college  or  aca- 
demy ;  or  any  person  who  is  or  shall  be  specially  exempted  by 
law  from  serving  on  juries. 

The  court  is  also  required  to  discharge  a  juror  against  whom 
there  is  any  legal  exception — as  the  being  an  alien,  or  the  hav- 
ing been  convicted  of  an  infamous  crime. 

Besides  the  exemptions  already  enumerated,  the  court  to 
which  any  person  shall  be  returned  as  a  juror  shall  excuse  such 
juror  from  serving  at  such  court,  whenever  it  shall  appear : — (2 
R.  S.  512,  35.) 

1.  That  he  is  a  practising  physician,  and  has  patients  requir- 
ing his  attention ;  or 

2.  That  he  is  a  surrogate  or  Justice  of  the  Peace,  or  executes 
any  other  civil  office,  the  duties  of  which  are  at  the  time  incon- 
.sistent  with  his  attendance  as  a  juror  ;  or 

3.  That  he  is  a  teacher  in  any  school,  actually  employed,  and 
serving  as  such  ;  or 

4.  AVhcn  for  any  other  reason  the  interests  of  the  public  or  of 
the  individual  juror  will  be  materially  injured  by  such  attend- 
ance, or  his  own  health,  or  that  of  any  member  of  his  family, 
requires  his  absence  from  such  court. 

In  all  suits  except  between  two  towns,  the  jury  must  be  sum- 
moned from  Ihe  town  where  the  Justice  resides.  When  the  suit 
is  betW(,'oti  two  towns,  the  jury  ninsL  be  sunnnoned  from  the 
county  nf  large;  and  in  such  case,  no  inhabitant  of  cither  town 
can  be  a  jinor.     (M.  3!{0,  sec.  97.) 

A  jury  is  summoned  by  what  is  termed  a  venire.     The  ve- 


AND  PREPARATORY  TO  TRIAL.  133 

nire  is  a  writ  issued  by  the  Justice.  It  is  directed  to  any  con- 
stable of  the  county  where  the  cause  is  to  be  tried,  commanding 
him,  in  the  name  of  the  people  of  the  state,  to  summon  twelve 
(or  if  the  number  agreed  upon  is  less  tlian  six,  double  that  num- 
ber) good  and  lawful  men  in  the  town  where  such  Justice  resides, 
(or  if  the  suit  is  between  two  towns,  from  the  county  at  large,) 
qualified  to  serve  as  jurors,  and  not  exempt  from  servmg  on 
juries  in  courts  of  record,  who  shall  be  in  no  wise  of  kin  to 
plaintiff  or  defendant,  nor  interested  in  such  suit,  to  appear  be  • 
fore  such  Justice,  at  a  time  and  place  to  be  named  therein,  to 
make  a  jury  for  the  trial  of  the  action  between  the  parties  named 
in  such  venire.     (2  R.  S.  339,  sec.  95,  96.) 

FORM    OF    A    VENIRE. 

Chenango  Counti/,  ss.  f 
Town  of  Oxford.      S 

To  any  constable  of  said  county— greeting  : 
You  are  hereby  commanded,  in  the  name  of  the  people  of  the 
State  of  New  York,  to  summon  twelve  (or  double  the  number 
agreed  upon,  if  less  than  six,)  good  and  lawful  men  of  the  said 
town,  qualified  to  serve  as  jurors,  and  not  exempt  from  serving 
on  juries  in  courts  of  record,  who  shall  be  in  no  wise  of  kin  ei- 
ther to  John  Smith,  plaintiff,  or  Peter  Pray,  defendant,  nor  in- 
terested in  the  suit  to  be  tried,  to  appear  before  me,  the  under- 
named Justice  of  the  Peace  of  said  county,  at  my  office  in  said 
town,  on  the  15th  day  of  June,  instant,  at  ten  o'clock  in  the  fore- 
noon, to  make  a  jury  for  the  trial  of  an  action  on  a  promissory 
note,  now  depending  before  me,  the  said  Justice,  and  then  and 
there  to  be  tried  between  the  said  parties  ;  and  have  then  there  a 
list  of  jurors  you  shall  so  summon,  and  this  precept.  Given 
under  my  hand,  at  Oxford,  June  10th,  1849. 

David  Long,  Justice. 

The  Justice  is  required  to  deliver  the  venire,  or  cause  it  to  be 
delivered,  to  some  constable  of  the  county  who  is  disinterested 
between  the  parties,  and  against  whom  no  reasonable  objection 
shall  have  been  made  by  either  party.  (2  R.  S.  339,  sec.  98.) 
When  an  objection  is  made  to  a  constable,  the  facts  constituting 
the  objection  should  be  proved  by  the  oath  of  the  party  object- 
ing, or  by  the  oath  of  some  third  person.     If  it  should  be  made 


134  OI-'  PROCEEDINGS  AFTER  ISSUE  JOINED, 

to  appear  that  there  exists  an  enmity  between  the  constable  and 
the  party  objecting  ;  or  that  the  constable  and  the  adverse  party 
are  on  terms  of  peculiar  intimacy,  so  that  his  feelings  may  be 
interested  in  behalf  of  the  party ;  the  Justice  should  deliver  the 
venire  to  another  constable  against  whom  there  is  no  objection. 
(2  Cow.  Tr.  882.) 

The  statute  directs  that  the  constable  shall  execute  the  venire 
fairly  and  impartially,  and  shall  not  simimon  any  person  whom 
he  has  reason  to  believe  biassed  or  prejudiced,  for  or  against  ei- 
ther of  the  parties.  He  should  also  be  cautious  not  to  summon 
jurors  who  are  disqualified  or  exempt,  and  should  select  men  of 
good  understanding  and  exemplary  habits,  (2  R.  S.  340,  sec.  99.) 

The  constable  must  summon  the  jury  personally.  (Id.)  The 
service  may  be  by  reading  or  stating  the  substance  of  the  venire 
to  each  person  summoned,  at  the  same  time  stating  the  name 
of  the  Justice  issuing  the  venire,  and  the  time  and  place  of  trial. 

The  constable  must  make  a  list  of  the  persons  summoned, 
which  list  he  must  certify  and  annex  to  the  venire,  and  return 
to  the  Justice.     (Id.) 

FORM    OF    constable's    RETURN. 

Annex  the  list  of  jurors  to  the  venire,  and  endorse  upon  the 
venire  thus  : 

•'  By  virtue  of  the  within  precept,  I  have  personally  sinnmoned 
as  jurors,  the  several  persons  named  in  the  annexed  list.  Dated 
June  15th,  1849. 

William  Cooke,  Constable." 

Every  person  who  shall  bo  duly  summoned  as  a  juror,  and 
shall  not  appear,  nor  render  a  reasonable  excuse  for  his  default ; 
or  appearing,  shall  refuse  to  serve  ;  shall  be  subject  to  the  same 
fine,  and  to  be  collected  in  the  same  manner  as  a  defaulting 
witness.  (2  R.  S.341,  sec.  113.)  The  constable's  return  on  the 
vr'uire  wouM  be  sufficient  evidence  of  the  summoning  of  the 
juror ;  and  the  docket  of  the  Justice  would  be  evidence  that  the 
juror  made  default  in  appearing.     (14  J.  R.  481.) 

If  ill'-  rf)ns(:il)le  to  whom  the  venire  9,h:i\\  have  l)e(Mi  delivered 
do  not  nliini  llu;  same  as  thereby  reciuircd,  or  if  a  full  jury  shall 
not  bo  ol)laincd,  the  Justice  shall  issue  a  new  venire.  (2  R.  S. 
340,  s'c.  103.) 

The  party  (b'tn;ui(!irig  a  trial   by  jury,  may  waive  such  trial 


AND  PREPARATORY  TO  TRIAL.  135 

after  a  venire  has  been  issued.  But  if  the  venire  has  been 
served  and  returned  the  other  party  would  have  a  right  to  insist 
that  the  cause  should  be  tried  by  the  jury  thus  returned,  not- 
withstanding the  party  originally  demanding  such  trial  should 
waive  it ',  or  if  a  jury  should  not  be  obtained  on  that  venire,  he 
might  require  that  a  new  venire  should  be  issued  at  his  instance. 
(Edw.  Tr.  3d  ed.  89.) 

When  a  new  venire  is  issued,  it  will  be  considered  the  pro- 
cess of  the  party  at  whose  instance  the  first  venire  was  issued, 
and  no  objection  to  the  form  of  it  can  be  made  by  him.  (Id.  2 
Caines,  134.) 

If  when  the  venire  is  not  returned  at  the  time  appointed  for 
trial,  the  defendant  do  not  demand  a  new  venire,  but  go  to  trial 
before  the  Justice,  it  will  be  a  waiver  of  the  trial  by  jury.  (7  X 
R.  198.) 


CHAPTER  VIII, 


EVIDENCE. 


I  SHALL  treat  the  subjects  of  this  chapter  under  the  following 
heads : 

1.  Of  the  Nature  of  Evidence, 

2.  General  Rules. 

3.  Who  are  Competent  Witnesses. 

4.  Evidence  on  Matters  of  Record. 

5.  Evidence  of  Matters  not  of  Record. 

6.  Proof  of  Written  Instruments  and  Private  Writings. 

7.  Books  of  Account. 

1.   Of  the  Nature  of  Evidence. 

Evidence  signifies  that  which  demonstrates,  makes  clear,  and 
ascertains,  the  truth  of  the  very  fact  or  point  in  issue,  either  on 
the  one  side  or  on  the  other.     (3  Blk.  Com.  367.) 

None  but  mathematical  truth  is  susceptible  of  that  high  de- 
gree of  evidence  which  excludes  all  possibility  of  error.  The 
most  that  can  be  affirmed  of  the  ordinary  affairs  of  life  is,  that 
there  is  no  reasonable  doubt  concerning  them.  The  true  ques- 
tioti,  therefore,  in  trials  of  fact,  is  not  whether  it  is  possible  that 
the  testimony  may  be  false,  but  whether  there  is  sufficient  prob- 
nhility  of  its  truth  ;  that  is,  whether  the  facts  are  shown  by  com- 
petent and  satisfactory  evidence.  Things  established  by  com- 
petent and  satisfactory  evidence,  are  said  to  be  proved.  By  com- 
petent evidence,  is  meant' that  which  the  very  nature  of  the  thing 
to  be  proved  requires,  as  the  fit  and  appropriate  proof  in  the  par- 
ticular case ;  such  as  the  production  of  a  writing,  where  its  con- 
tents arc  tlio  subject  of  inquiry.  13y  satisfactory  evidence  is  in- 
tended that  amount  of  proof  which  ordinarily  satisfies  an  un- 
prejudiced mind  beyond  reasonable  doubt.  (1  Greenl.  Ev.  3, 4.) 
I'!viden(;c  consists  eiliicr  of  positive  or  prosumprivc  proof. 
The  proof  is  positive  when  the  witness  speaks  directly  to  a  fact, 
Ironi  his  own  immediate  knowledge  ;  and  presumptive,  when 


EVIDENCE.  137 

the  fact  itself  is  not  proved  by  direct  testimony,  but  is  to  be 
inferred  from  circumstances  which  either  necessarily  or  usually 
attend  such  facts.  The  latter  is  also  called  circumstantial  evi- 
dence.    (1  Phil.  Ev.  155.) 

As  the  sole  object  of  evidence  is  to  ascertain  the  truth  of  the 
several  disputed  facts,  or  points  in  issue,  on  the  one  side  or  the 
other,  no  evidence  ought  to  be  admitted  to  any  other  point.  (1 
Phil.  Ev.  169.) 

2.   General  Rules. 

It  is  only  necessary  to  prove  the  substance  of  the  issue.  If 
the  party  does  this,  he  proves  a  substantial  ground  of  action, 
and  is  entitled  to  his  remedy.  (1  Phil.  Ev.  149.)  In  an  action 
for  cutting  down  a  certain  number  of  trees,  proof  that  the  de- 
fendant cut  a  smaller  number,  is  sufficient.  So,  where  the 
plaintiff  alleges  that  the  defendant  was  to  do  a  certain  act,  on 
the  payment  of  a  sum  of  money,  proof  of  tender  and  refusal 
establishes  the  issue,  for  this  is  equivalent  to,  and  in  substance, 
a  payment.     (1  Wils.  115.) 

As  a  general  rule,  the  party  holding  the  affirmative  of  the 
issue,  has  the  burthen  of  proof.  (1  Phil.  Ev.  194.)  Where, 
however,  one  party  charges  another  with  a  culpable  omission  or 
breach  of  duty,  the  person  who  makes  the  charge,  is  bound  to 
prove  it,  though  it  may  involve  a  negative  ;  for  it  is  one  of  the 
first  principles  of  justice  not  to  presume  that  a  person  has  acted 
illegally  until  the  contrary  is  shown.  (1  Phil,  on  Ev.  195.) 
Where  also,  the  presumption  of  law  is  in  favor  of  the  defendant, 
it  will  be  incumbent  on  the  plaintiff  to  disprove  the  defence, 
though  in  so  doing  he  may  have  to  prove  a  negative.  As  in  an 
action  on  a  bond,  if  the  defendant  plead  payment,  and  the  bond 
appears  to  have  been  outstanding  for  twenty  years,  the  law 
presumes  that  the  principal  debt  has  been  discharged  ;  and  to 
repel  the  presumption,  it  will  be  necessary  for  the  plaintifi'  to 
produce  evidence  of  payment  of  interest,  or  of  an  admission  of 
the  debt.  So^  where  the  question  is  on  the  legitimacy  of  a  child, 
if  a  legal  marriage  is  proved,  the  legitimacy  is  presinried,  and 
the  party  who  asserts  the  illegitimacy,  ought  to  prove  it.  (Id. 
197.) 

The  best  evidence  the  nature  of  the  case  will  admit,  should 
always  be  required,  if  possible  to  be  had  ;  but  if  not  possible, 


138  BVIDENCE. 

then  the  best  evidence  that  can  be  had,  may  be  allowed.  For 
if  it  be  found  that  there  is  any  better  evidence  existing  than  is 
produced,  the  very  not  producing  it  is  a  presumption  that  it 
would  have  detected  some  falsehood  that  at  present  is  con- 
cealed. (3  Blk.  Com.  368.)  Thus,  if  a  party  offer  a  copy  of  a 
deed,  when  he  is  able  to  produce  the  original,  this  raises  a  pre- 
sumption that  there  is  something  in  the  deed,  which  if  produced, 
would  be  against  the  party ;  and,  therefore,  a  copy  in  such 
cases,  is  not  evidence.  But  if  he  prove  the  original  deed  in  the 
hands  of  the  adverse  party,  to  whom  he  has  given  notice  to 
produce  it,  who  refuses  ;  or  that  the  original  has  been  lost  or 
destroyed  without  his  default ;  no  such  presumption  can  arise, 
and  a  copy,  or  parol  evidence,  will  be  admitted.  (1  Phil.  Ev. 
218.)  The  party,  however,  who  served  the  notice  to  produce 
the  original,  must  first  prove  such  service,  before  he  can  give 
parol  evidence  of  its  contents.  Proof  of  service  may  be  made 
by  the  party  himself  testifying  to  the  fact  in  open  court,  or  by 
his  affidavit  of  service,  sworn  to  before  any  officer  authorized 
by  law  to  administer  oaths  ;  or  if  notice  was  given  verbally,  it 
may  be  proved  by  any  person  who  heard  it  given.  (Id.  445,  6, 
Cow.  &  Hill's  Notes,  1197,  8.) 

Though  the  best  evidence  is  to  be  given  the  nature  of  the 
case  admits,  yet  it  is  not  to  be  understood  that  the  most  satis- 
factory proof  of  which  the  fact  is  capable,  is  necessary.  If  a 
deed,  for  example,  is  attested  by  several  subscribing  witnesses, 
the  execution  may  be  proved  by  one  of  them  ;  or  if  none  of  the 
witnesses  can  bo  produced,  proof  of  the  signature  of  one  of 
Ihem  will  be  suffiricnt ;  for  the  proof  is,  as  far  as  it  goes,  com- 
plete ;  nor  can  it  be  inferred  merely  from  the  absence  of  further 
proof  of  the  same  kind,  that  such  additional  proof  would  be 
inconsistent  with  tUat  already  produced.  So,  to  prove  the 
plaintiff's  demand  satisfied,  the  defendant  may  prove  the 
plaintiff's  admission  to  that  effect,  though  it  should  appear 
(hat  the  plaintiff  had  signed  a  receipt,  and  the  receipt  would 
be  more  sntisfactory  proof     (1  Phil.  220.     7  Cow.  334.) 

Hearsay  evidence,  that  is,  what  the  witness  professes  he 
heard  anolli'-r  jx-rsdu  say,  is  not  admissible.  (1  Phil.  Ev.  229.) 
The  r(!asfin  (A'  (Ih;  rnle  is,  befause  evidence  ought  to  be  given 
under  (he  satiftinn  of  .m  oitli  ;  and  Ihe  person  who  is  to  be 
affected  by  the  evidence,  ought  to  have  an  opportunity  of  inter- 


EVIDENCE.  139 

rogating  the  witness  as  to  his  means  of  Icnowledge,  and  con- 
cerning all  the  particulars  of  his  statement.     (Id.  230.) 

Letters,  or  private  papers,  written  hy  a  third  person,  arc  open 
to  the  same  objection  as  hearsay  declarations  ;  being  statements 
made  without  oath,  and  not  in  the  presence  of  the  party  who 
would  be  prejudiced  by  them.     (Id.) 

Where  it  is  necessary  to  inquire  into  the  nature  of  a  particu- 
lar act,  proof  of  what  the  person  said  at  the  time  of  doing  it.  is 
admissible,  for  the  purpose  of  showing  its  true  character.  (1 
Phil.  Ev.  231.)  For  the  same  reason,  letters  written  by  the 
payee  of  a  promissory  note  to  the  maker,  cotemporaneous  with 
the  making  of  the  note,  and  forming  a  part  of  the  original  trans- 
action, are  admissible  in  evidence  to  prove  the  consideration 
passing  between  the  parties  ;  so  also,  in  an  action  by  the  en- 
dorsee against  the  maker.     (Id.) 

To  prove  a  pedigree,  death,  relationship,  marriage,  when  one 
married,  his  number  of  children,  time  of  marriage,  &.c.,  the 
declarations  of  members  of  the  family  are  admissible,  as  well 
as  descriptions  in  wills,  upon  monuments,  entries  in  family 
bibles,  &c.  (Id.  238,  9.  Cowen  &  Hill's  Notes,  612,  613,  615, 
616.)  And  the  declarations  of  one's  deceased  father,  or  a  me- 
morandum of  the  time  of  one's  birth,  made  by  his  deceased  father. 
(Id.  240.)  So  also,  the  original  entry  kept  by  a  religious  society. 
of  the  births  and  deaths  among  its  members,  is  evidence.  (6 
Binn.  416.) 

The  declarations  or  statements  of  third  persons  deceased, 
have  been  admitted  in  many  cases  where  they  appear  to  be 
made  against  their  interest ;  as  entries  in  their  books  charging 
themselves  with  the  receipt  of  money  on  account  of  a  third 
person,  or  acknowledging  the  payment  of  money  due  to  them- 
selves. The  principle  upon  which  such  testimony  is  allowed, 
is,  that  the  entry  is  made  by  an  individual  cognizant  of  a  fact, 
at  a  time  when  it  was  not  in  dispute,  having  no  interest  to 
make  a  false  entry,  and  making  one  tending  to  his  prejudice. 
(1  Phil.  Ev.  255.)  Entries  in  the  books  of  a  tradesman,  by  his 
deceased  clerk,  who  there  supplies  proof  of  a  charge  against 
himself,  have,  for  the  same  reason,  been  admitted  as  evidence 
of  the  delivery  of  goods,  or  of  other  matters  there  stated,  within 
his  own  knowledge.  (Id.  263.)  So  also,  where  A.  has  a  horse 
in  his  possession,  but  admits  that  it  belongs  to  B.,  and,  after  this 
admission,  sells  and  delivers  it  to  C.  ;  in  an  action  by  B.  for  the 


140  EVIDENCE. 

horse  against  C,  A.  being  dead,  A.'s  admission  is  evidence 
against  C. 

One  witness  (if  credible)  is  sufficient  in  a  civil  suit,  for  the 
proof  of  any  fact.  "  In  deciding  upon  the  effect  of  evidence, 
the  question  is  not  by  how  many  witnesses  a  fact  may  have 
been  proved,  but  whether  it  has  been  proved  satisfactorily,  and 
so  as  to  convince  the  understanding.  The  number  of  wit- 
nesses is  not  more  conclusive  on  matters  of  proof,  than  a  num- 
ber of  arguments  on  a  subject  of  reasoning.  The  evidence  of  a 
single  witness  may  be  so  clear,  so  full,  so  impartial,  so  free  from 
all  suspicion  and  bias,  as  to  produce  in  every  mind,  even  in  the 
most  scrupulous,  the  strongest  and  deepest  conviction.  On  the 
other  hand,  witness  may  crowd  after  witness,  all  asserting  the 
same  facts,  yet  none  be  worthy  of  credit.  In  short,  it  is  the 
character  of  witnesses,  and  the  character  of  their  evidence,  that 
ought  to  prevail,  and  not  their  number."     (1  Phil.  Ev.  151.) 

No  oath  of  either  party,  in  his  own  behalf,  upon  the  merits 
in  controversy,  is  admissible  in  evidence,  unless  the  parties 
agree  to  allow  such  evidence  ;  or  imlcss  the  party  offering  him- 
self as  a  witness  in  his  own  behalf,  has  previously  been  called 
by  the  opposite  party.  (Code,  sec.  395.)  And  the  Justice  has 
no  right  to  admit  evidence  of  the  declarations  of  either  party  in 
his  own  favor,  to  go  to  the  jury — even  although  he  directs  the 
jury  to  disregard  it.     (13  J.  R.  350.     15  id.  237.     2  Cow.  436.) 

But  as  a  general  rule,  the  declarations  of  a  party  against 
himself  are  admissible,  and  are  regarded  as  the  most  satisfactory 
evidence,  although  not  conclusive.  (15  J.  R.  229.)  The  whole 
declaration,  is  however,  always  to  be  taken  together,  and  the 
same  credit  given  to  that  part  of  the  statement  which  is  in  his 
favor,  as  that  which  is  against  him ;  so  that  the  true  intent  and 
import  of  the  whole  confession  may  be  obtained.  (9  id.  141. 
10  id.  38  and  3G5.     11  id.  161.) 

The  .statement  or  representation  of  an  agent,  in  making  an 
agreornoiit,  or  in  doing  an  act  witliin  the  scope  of  his  authority, 
is  evidcnco  against  the  princi])al  himself,  and  equivalent  to  his 
own  acknowledgment.  Con.sequenlly,  a  letter  from  the  defend- 
ant's clerk,  inforruing  tin;  plaintiff  that  a  policy  had  been  effect- 
ed, was  h<;l(i  to  he  good  evidence  of  the  existence  of  the  poUcy ; 
and  the  defendant  was  not  allowed  to  j)rov(!  liiat  the  letter  had 
lK;en  written  hy  niislnke,  and  that  the  policy  had  not  been  made. 
(1  Phil.  Ev.  99,  100.) 


EVIDENCE.  141 

If  one  party  refer  another,  for  information  on  a  disputed  fact, 
to  a  third  person,  as  authorized  to  answer  for  him,  or  employ  an 
agent  to  make  certain  propositions  respecting  a  transaction  be- 
tween himself  and  another,  he  is  bound  by  what  his  agent  says 
or  does  within  the  scope  of  his  authority,  as  much  as  if  it  had 
been  done  or  said  by  himself  In  an  action,  therefore,  for  goods' 
sold,  where  it  appeared  at  the  trial  that  in  a  conversation  be- 
tween the  plaintiff  and  defendant,  the  former  asserted  that  he 
had  delivered  the  goods  by  one  C,  and  the  defendant  replied, 
•'  If  C.  will  say  he  did  deliver  the  goods,  I  will  pay  for  them," 
the  plaintiff  was  allowed  to  give  in  evidence  C.'s  answer  respect- 
ing the  matter  referred  to  him.     (Id.  101.) 

Where  the  plaintiff,  previous  to  the  suit,  assigns  his  interest  in 
the  demand,  and  the  defendant  has  notice  of  the  assignment, 
the  confessions  of  the  plaintiff,  made  subsequent  to  the  assign- 
ment, are  inadmissible  to  defeat  a  recovery.     (20  J.  R.  142.) 

The  confessions  of  a  party  are  not  admissible  to  prove  the 
execution  of  a  scaled  instrument,  to  which  there  is  a  subscri- 
bing witness,  nor  matters  of  record.  And  in  a  suit  brought 
against  a  witness  for  non-attendance  before  a  Justice,  the  ac- 
knowledgment of  the  witness  that  he  has  been  subposnaed  will 
not  be  sufficient ;  the  subpoena  must  be  produced.  (10  J.  R. 
248.) 

An  admission  by  one  of  several  joint  plaintiffs,  is  evidence 
against  all ;  and  the  admission  of  a  joint  debtor,  though  not  a 
party  to  the  suit,  is  evidence  against  those  who  are  defendants. 
(1  Phil.  Ev.  92,  93.)  But  the  acknowledgment  of  an  account 
by  one  partner,  after  a  dissolution  of  the  partnership,  will  not 
bind  the  other ;  though  it  would  be  sufficient  to  take  the  case 
out  of  the  statute  of  limitations,     (Cow.  &.  Hill's  Notes,  173.) 

An  offer  of  compromise  of  a  contested  claim  is  no  evidence  of 
indebtedness,  for  a  man  may  be  willing  to  buy  his  peace  at  a 
sacrifice ;  and  admissions  or  concessions,  made  v^dien  a  treaty 
of  compromise  is  pending,  with  reasonable  prospect  that  it  will 
be  carried  into  effect,  aie  not  admissible  evidence  against  the 
party  making  them.     (8  Cow.  201.) 

A  competent  witness  cannot  be  excused  from  answering  a  re- 
levant question,  on  the  ground  merely  that  his  answer  will  tend 
to  estabhsh  that  he  owes  a  debt,  or  is  otherwise  subject  to  a  civil 
suit.     (2  R.  S.  503,  sec.  90.) 


42  EVIDENCE. 


3.  Who  are  Competent  Witnesses. 

A  Justice  cannot  decide  on  his  own  previous  knowledge,  but 
only  on  legal  evidence.  (10  J.  R.  250.  14  id.  481.)  When  a 
witness  appears,  he  must  be  received,  unless  an  objection  is 
made  to  his  competency.  (1  Phil.  Ev.  17.)  An  objection  to  the 
credibility  of  a  witness  cannot  prevent  him  from  testifying. 
Thus  relationship  may  afiect  the  credibility,  but  cannot  affect 
the  competency  of  a  witness.  Hence  a  father  is  a  competent 
witness  for  or  against  his  son,  or  a  son  for  or  against  his  father. 
(Id.)  Husband  and  wife  cannot  be  witnesses  for  or  against  each 
other  in  any  civil  suit.  (Id.  7G.)  The  reason  for  excluding  the 
husband  and  wife  from  giving  evidence,  is  founded  partly  on 
their  identity  of  interest,  and  partly  on  a  principle  of  public  pol- 
icy, which  deems  it  necessary  to  guard  the  security  and  confi- 
dence of  private  life.  They  cannot  be  witnesses  for  each  other, 
because  their  interests  are  absolutely  the  same  ;  they  are  not 
witnesses  against  each  other,  because  this  is  inconsistent  with 
the  relation  of  marriage.     (1  Phil.  Ev.  77.) 

The  Justice  before  whom  the  cause  is  tried,  cannot  be  a  wit- 
ness, although  sworn  by  another  Justice.  (1  J.  11.  520.  8  id. 
470.) 

No  person  shall  be  rendered  incompetent  to  be  a  witness  on 
account  of  his  opinions  on  matters  of  religious  belief  (Cons. 
sec.  3.) 

The  objections  to  the  competency  of  a  witness  may  be,  first, 
want  of  reason  or  understanding ;  second,  infamy  of  character ; 
and  third,  on  the  ground  that  the  proposed  witness  is  a  party  to 
the  action,  or  is  the  person  for  whose  immediate  benefit  it  is  pro- 
secuted or  defended.     (1  Phil.  Ev.  18.     Code,  sees.  398,  399.) 

Children  who  arc  not  able  to  understand  the  moral  obligation 
of  an  oath,  cannot  be  examined.  There  is  no  particular  age  at 
wliicli  they  are  to  be  admitted  to  testify.  Infants  above  fourteen 
arc  admissible  the  same  as  persons  of  full  age.  The  admissi- 
bility of  childrj'n  to  testify  inider  the  age  of  fourteen  is  to  be  dc- 
termimd  hy  their  a]i])ai(nt  sense  ami  understanding  of  the  na- 
ture and  oidigalion  of  an  oath,  (i  Phil.  I-jV.  18.)  The  Justice 
may  examine  a  cliild  or  other  person  of  weak  intellect,  to  ascer- 
tain his  capacity.  Albr  siK-h  cxamiiiiition,  tin;  matter  must 
rest,  in  a  great  nicasuri',  in  the  discretion  of  the  Justice.  (2  R. 
8.  505.) 


EVIDENCE.  143 

Persons  who  have  not  the  use  of  reason  are  excluded,  by  their 
infirmity,  from  testifying — as  persons  insane,  idiots  and  lunatics 
under  the  influence  of  their  malady.  (1  Phil.  Ev.  18.)  But 
such  insanity  must  be  shown  to  the  Justice  by  proof;  (10  J. 
R.  362 ;)  and  lunatics  and  others  who  arc  subject  to  temporary 
fits  of  insanity  may  be  witnesses  in  their  lucid  intervals,  if  they 
have  sufficiently  recovered  their  understandings. 

A  person  born  deaf  and  dumb  is  not,  on  that  account,  incom- 
petent ;  but  if  he  has  sufficient  understanding,  may  give  evi- 
dence by  signs,  with  the  assistance  of  an  interpreter.  (1  Phil. 
Ev.  19.) 

A  witness,  while  in  a  state  of  intoxication,  ought  not  to  be 
permitted  to  testify ;  and  the  Justice  must  decide  whether  the 
witness  is  in  such  a  situation  that  he  ought  not  to  be  sworn. 
(16  J.  R.  143.) 

No  person  sentenced,  upon  a  conviction  for  felony,  shall  be 
competent  to  testify  in  any  cause,  matter  or  proceeding,  civil  or 
criminal,  unless  he  be  pardoned  by  the  governor,  or  by  the  legis- 
lature, except  in  the  cases  specially  provided  by  law ;  but  no 
sentence,  upon  a  conviction  for  any  offence  other  than  felony, 
shall  disqualify  or  render  any  person  incompetent,  to  be  sworn, 
or  to  testify,  in  any  cause,  matter,  or  proceeding,  civil  or  crimi- 
nal.    (2  R.  S.  788,  sec.  26.) 

The  offence  of  '■'■  JelomJ''  means  an  offence  for  which  the 
offender,  on  conviction,  shall  be  liable,  by  law,  to  be  punished 
by  death  or  by  imprisonment  in  a  state  prison.  (Id.  789,  sec.  33.) 
When  a  witness  is  objected  to,  on  account  of  his  having  com- 
mitted a  felony,  he  is  not  to  be  inquired  of  as  to  his  criminality ; 
the  record  of  his  conviction  must  be  produced.  (13  J.  11.  82. 
14  id.)  A  witness  cannot  be  required  to  answer  a  question 
which  will  have  a  tendency  to  accuse  himself  of  any  crime  or 
misdemeanor,  or  expose  him  to  any  penalty  or  forfeiture.  (1 
Phil.  Ev.  30.) 

N©  person  offered  as  a  witness  shall  be  excluded,  by  reason 
of  his  interest  in  the  event  of  the  action.  This  rule,  however, 
does  not  apply  to  a  party  to  the  action,  nor  to  any  person  for 
whose  immediate  benefit  it  is  prosjcuted  or  defended,  nor  to  any 
assignor  of  a  thing  in  action,  assigned  for  the  purpose  of  making 
him  a  witness.     (Code,  sec.  398,  399.) 

It  is  seen,  by  the  foregoing,  that  the  incompetency  of  witnesses 
founded  on  interest;  is  removed,  except  as  to  parties,  and  those 


144  EVIDENCE. 

Standing  substantially  in  the  relation  of  parties.  But  proof  that 
a  witness  is  interested  in  the  judgment  to  be  rendered,  may  be 
given  to  impair  the  credibility/  of  the  witness.  For  though  ren- 
dered competent,  it  does  not  follow  that  the  testimony  of  an 
interested  witness  will  receive  the  full  measure  of  credit  that 
would  otherwise  be  awarded  to  it. 

If  a  witness,  uj)on  being  offered,  is  objected  to,  on  the  ground 
that  the  action  is  prosecuted  for  his  immediate  benefit,  such  ob- 
jection must  be  tried  and  determined  by  the  Justice.  Evidence 
may  be  given  in  support  of,  or  against  such  objection,  as  in  other 
cases  ;  or  the  proposed  witness  may  be  examined  on  oath  by 
the  party  objecting ;  and  if  so  examined,  no  other  testimony 
shall  be  received  from  either  jDarty  as  to  the  competency  of  such 
witness.     (2  R.  S.  340,  sec.  108.) 

It  is  said,  that  if  the  interest  of  the  witness  be  shown  inde- 
pendently of  his  testimony,  he  cannot  be  examined  to  remove 
it.  If;  however,  his  interest  appears  from  his  own  examination, 
he  may  be  cross-examined  to  facts,  to  show  that  it  has  been  re- 
moved.    (1  Phil.  Ev.  267.) 

What  a  li-itness  has  been  heard  to  say,  is  not  admissible  to 
prove  him  incompetent  or  interested  ;  otherwise  of  the  declara- 
tions made  by  the  party  calling  him.  (Cow.  <fc  Hill's  Notes, 
2.58,  707,  1559. ) 

Although  a  party  to  the  suit,  is  not  regularly  a  competent 
witness  for  himself,  yet  he  may,  in  one  instance,  testify  in  his 
own  case.  The  adverse  party  can  compel  his  attendance  in  the 
same  manner,  and  subject  him  to  the  same  rules  of  examina- 
tion as  any  other  witness  ;  and  if  he  refuse  to  attend  and  tes- 
tify, besides  being  prosecuted  as  for  a  contempt,  his  complaint, 
answer  or  reply,  may  be  rejected.  He  is  made,  however,  by  the 
production,  a  general  witness,  and  though  called  to  testify  but 
to  a  single  point,  may  be  examined  in  his  own  behalf,  as  to  all 
the  points  in  the  cause.,  But  if  he  testify  to  any  new  matter, 
not  responsive  to  the  inquiries  put  to  him  by  the  adverse  party, 
such  adverse  paity  may  offer  liinisclf  as  a  witness  in  his  own 
behalf,  in  respect  to  the  new  matter.  (Code,  sees.  390,  394, 
395.) 

A  party  in  the  suit  or  having  an  interest  in  the  verdict,  may 
be  a  witness  to  provf^  the  death  or  absence  beyond  the  reach  of 
a  suhpo-na  of  the  Justice,  of  a  subscribing  witness  to,  or  the 
loss  of  any  instrument  which  shall  come  in  question  on  the 


EVIDENCE 


145 


trial,  in  order  to  introduce  other  proof  of  the  execution  or  con- 
tents of  such  instrument ;  but  in  no  other  case  without  the  con- 
sent of  the  parties.     (106  Justices  Act.) 

When  a  party  to  any  action  shall  have  been  permitted  to 
prove,  by  his  own  oath,  the  loss  of  any  instrument,  in  order  to 
admit  the  proof  of  the  contents  thereof,  the  adverse  parly  may 
also  be  examined  by  the  Justice  on  oath,  to  disprove  such  loss, 
and  to  account  for  such  instrument.     (2  R.  S.  503,  sec.  93.) 

One  defendant  cannot  regularly  be  a  witness  for  his  co-de- 
fendant ;  but  in  actions  for  wrongs^  if  wo  evidence  has  been 
produced  against  one  defendant,  he  is  entitled  to  his  discharge, 
as  soon  as  the  plaintifl'  has  closed  his  case,  and  may  then  give 
evidence  for  the  others.  But  if  there  is  any,  even  the  slightest, 
evidence  against  him,  he  cannot  thus  be  discharged.  (14  J.  R. 
119.     1  Wend.  119.     3  Hill,  104.) 

Though  one  of  several  defendants  sued  for  a  wrong  in  a 
Justices'  Court,  be  discharged,  yet  if  the  opposite  party  appeal, 
such  defendant  is  not  a  competent  witness  on  the  appeal.     (Id.) 

If  process  issue  against  several  for  a  wrong,  but  is  served  on 
part  only  of  the  defendants,  the  others  are  competent  witnesses 
for  those  served.     (Cow.  &,  Hill,  144.) 

The  Justice  may,  at  any  time,  on  the  plaintiffs'  motion,  dis- 
charge one  or  more  of  several  defendants,  in  an  action  for  a 
wrong,  who  is  thus  rendered  a  competent  witness  for  either 
party.     (1  Phil.  Ev.  76.) 

A  counsel  or  attorney  is  not  to  be  permitted  to  testify  as  to 
confidential  communications  made  to  him  by  his  client.  This 
prohibition  extends  not  only  to  the  suit  in  which  the  communi- 
cation is  made,  but  to  any  other  suit  and  to  any  period  of  time. 
(1  Phil.  Ev.  140,) 

The  secrets  of  his  client  which  an  attorney  or  counsel  is 
bound  not  to  disclose,  are  communications  made  to  him,  as  in- 
structions for  conducting  the  cause  ;  and  not  any  extraneous 
or  impertinent  communications.  (3  John.  Cas.  198.  13  J.  R. 
492.) 

But  an  attorney  may  be  examined  like  any  other  witness,  as 
to  a  fact  which  he  knew  bcfric  the  retainer,  that  is  before  he 
was  addressed  in  his  ]i;ofessional  character.  Also  where  he  is 
questioned  as  to  a  collateral  fact  within  his  own  knowledge,  or 
to  a  fact  which  he  might  have  known,  without  being  intrusted 
as  attorney  in  the  cause.     If,  for  instance,  he  is  subscribing 

10 


146  KVIDENCE 

witness  to  a  deed,  he  may  be  examined  concerning  the  execu- 
tion. Or  if  there  be  a  question  about  an  erasure  in  a  deed,  he 
may  be  asked  whether  he  had  ever  seen  the  instrument  in  any 
other  condition,  for  it  is  a  fact  within  his  own  knowledge  ;  but 
he  ought  not  to  be  permitted  to  disclose  any  confessions  which 
his  client  may  have  made  to  him  respecting  it,  (1  Phil.  Ev. 
146.) 

Propositions  which  the  attorney  of  one  party  has  been  pro- 
fessionally employed  to  make  to  the  adverse  party,  and  which 
he  made  in  the  presence  of  a  third  person,  though  they  are  not 
to  be  disclosed  by  the  attorney  himself,  may  yet  be  proved  by 
the  person  who  heard  him  deliver  them.     (1  Phil.  Ev.  145.) 

An  agent,  clerk  or  student  at  law,  cannot  testify  to  facts  which 
he  learned  while  in  the  office  of  an  attorney.  But  a  person 
employed  in  a  suit  in  a  Justices^  Court,  or  elsewhere,  who  is- 
not  licensed  to  practice  in  Courts  of  Record,  and  not  acting  as 
an  agent,  clerk,  or  student  of  one  having  such  license^  is  not 
excused  from  disclosing  the  communications  of  his  employer. 
(Cow.  <fc  Hill's  Notes,  275  to  283,  and  1571  to  1574.) 

No  minister  of  the  gospel,  or  priest  of  any  denomination 
whatsoever,  shall  be  allowed  to  disclose  any  confessions  made- 
to  him  in  his  professional  character,  in  the  course  of  discipline 
enjoined  by  the  rules  or  practice  of  such  denomination.  (2  R. 
S.  503,  sec.  91.) 

No  person  duly  authorized  to  practice  physic  or  surgery  shall 
be  allowed  to  disclose  any  information  which  he  may  have  ac- 
quired, in  attending  any  patient,  in  a  professional  character,  and 
which  information  was  necessary  to  enable  him  to  prescribe  for 
such  patient  as  a  physician,  or  to  do  any  act  for  him  as  a  sur- 
geon. (Id.  sec.  92.)  But  a  physician  consulted  as  to  the  means 
of  doing  an  unlawful  act,  such  as  procuring  an  abortion,  is  not 
excused  from  answering.     (21  Wend.  79.) 

When  the  facts  are  disclosed,  it  is  for  the  Justice  and  not  the 
witness  to  decide,  whether  or  not,  he  is  privileged  from  answer- 
ing.    (1  Hill,  33.) 


fwHlericf!  is  v.ahvr  mritten  or  uimrittcn.  Writings  are  cither 
public  or  private.  Soinc  public  writings  arc  of  record,  and 
others  not  of  record.     (I  Piiil.  I'lv.  3U).) 


EVIDENCE.  147 

Public  writings  of  record  are  acts  of  the  legislature,  and  of 
Courts  of  Justice  which  are  Courts  of  Record. 

Acts  of  the  legislature  are  of  two  kinds  ;  public  acts  which 
relate  to  the  whole  state  at  large  ;  and  private  acts  which  relate 
to  particular  classes  of  men,  or  to  certain  individuals.  (Id. 
317.) 

Public  writings  not  of  record,  are  proceedings  in  courts  of 
law  not  being  records — such  as  rules,  orders,  process,  affidavits 
and  papers  ;  proceedings  under  the  insolvent  laws — as  assign- 
ments and  discharges  ;  proceedings  in  Surrogates'  Courts  and  in 
Courts  of  Justices  of  the  Peace ;  the  proceedings  of  public  no- 
taries relative  to  the  protest  of  bills  of  exchange,  and  promissory 
notes  ;  the  acts  of  the  corporation  of  a  city ;  sheriffs'  sales  of 
real  estate ;  books  and  other  papers  in  ofiicial  custody  of  the 
clerk  of  the  board  of  supervisors,  town  clerk  and  school  dis- 
trict clerk,  and  the  proper  officers  of  other  municipal  corpora- 
tions, &c. 

Private  writings  are  either  under  seal,  or  not  under  seal. 

4,  Evidence  on  Matters  of  Record. 

It  is  a  general  rule,  that  public  acts  of  the  legislature  are  to 
be  taken  notice  of  judicially  by  courts  of  law  ;  but  private  acts 
are  not  regarded  by  the  judges  unless  formally  shown,  or  unless, 
the  private  act  has  been  recognized  by  some  public  act.  (1 
Phil.  Ev.  318.) 

The  Revised  Statutes  may  be  read  in  evidence  from  the  copies 
printed  and  published  under  the  direction  of  the  revisers,  or  any 
two  of  them,  and  certified  by  them  to  be  true  copies  of  the 
original  acts,  which  certificate  is  required  to  be  printed  in  each 
copy.     (2  R.  S.  875,  sec.  876.) 

Any  person  or  persons  residing  in  this  state  may  print  and 
publish  the  whole,  or  any  part  of  the  Revised  Statutes ;  but  to 
entitle  any  copy  of  a  law  so  published,  to  be  read  in  evidence 
there  shall  be  contained  in  the  same  book  or  pamphlet,  a  printed 
certificate  of  the  secretary  of  stale,  or  of  two  of  the  revisers, 
that  such  copy  is  a  correct  transcript  of  the  text  of  the  Revised 
Statutes  as  published,  except  such  typographical  errors  in  the 
original,  as  may  be  corrected  in  such  copy,  and  except  such 
parts  as  shall  have  been  altered  by  acts  of  the  legislature  ;  and 


1^48  EVIDENCE. 

that  with  respect  to  such  parts,  it  conforms  to  the  acts  by  which 
such  alterations  shall  have  been  made.     (Id.) 

When  an  issue  is  joined  upon  the  record  of  a  Court  of  Jus- 
tice, and  the  question  to  be  tried  is"*  as  to  the  existence  of  the 
record,  a  copy  of  the  record  duly  certified,  and  under  the  seal 
of  the  office  or  court  where  it  is  kept,  must  be  produced.  Such 
copy  thus  authenticated,  is  called  an  exemplified  copy. 

But  when  the  question  of  the  record  is  not  directly  in  issue, 
but  arises  merely  incidentally,  as  a  link  in  the  chain  of  testi- 
mony, either  an  exemplified  copy  or  one  without  seal,  and  proved 
to  be  a  copy,  will  be  sufficient. 

Copies  of  records  not  under  seal,  are  of  two  kinds,  sworn  co- 
pies and  office  copies.     (1  Phil.  Ev.  386.) 

When  a  copy  of  a  record  is  proved  by  a  witness  who  has  com- 
pared the  copy  with  the  original,  or  who  examined  the  copy 
while  another  person  read  the  original,  it  is  called  a  sworn  copy. 
(Id.) 

An  office  copy  is  such  as  is  authenticated  under  the  hand  of 
an  officer  or  person  intrusted  for  that  purpose,  as  the  clerk  of  a 
court. 

5.  Evidence  on  Matters  not  of  Record. 

Proceedings  in  courts  of  law  not  being  records,  may  be  proved 
by  office  copies  duly  certified  by  the  clerk  in  whose  custody 
they  are  deposited  under  the  seal  of  the  court.  But  a  seal  is  not 
necessary  where  the  paper  is  to  be  used  in  the  same  court,  or  be- 
fore any  officer  thereof;  nor  where  a  certified  copy  of  a  rule  or 
order  of  the  Supreme  Court  is  to  be  used  in  the  Circuit  Court. 
(2R.  S.  500,  sees.  70,71.) 

A  judge's  order  may  be  i>roved  by  the  production  of  the  order 
itself.     (4  Campb.  17.) 

Affidavits  made  in  other  States,  must  be  authenticated  as  fol- 
lows : — 1.  They  must  be  certified  by  some  judge  of  a  coiu't  hav- 
ing a  seal,  to  have  been  subscribed  and  taken  before  him,  speci- 
fying the  time  and  place,  when  and  where  taken.  2.  The  gen- 
uineness of  the  signature  of  such  judge,  the  existence  of  the 
court,  and  the;  fact  that  such  ju(Jg<!  is  a  lueinlicr  thereof,  must  be 
certified  by  the  cl(;rk  of  ih<!  court  imdcr  the  seal  thereof.  (2  R. 
S.  492,  sec.  2G.) 

Proceedings  under  the  insolvent  laws  may  be  proved  either 


EVIDENCE  149 

by  the  orginal  documents  or  the  records  thereof,  or  transcripts 
of  such  records  duly  authenticated.     (2  R.  S.  94,  sees.  19,  20.) 

Proceedings  in  surrogates'  courts,  such  as  the  probate  of  wills, 
letters  testamentary,  and  letters  of  administration,  may  be  proved 
by  the  records  thereof,  or  by  transcripts  from  the  records,  certi- 
fied by  the  surrogate  under  his  seal  of  ofTice.  (2  R.  S.  145,  sec. 
72.     4  Wend.  43(5.) 

In  an  action  before  a  Justice,  his  own  docket  of  a  judgment,  or 
other  proceeding  had  before  him,  will  be  good  evidence.  (2  R. 
S.  354,  sec.  251.) 

A  transcript  from  the  docket  of  a  Justice,  of  a  judgment  had 
before  him  ;  of  the  proceedings  in  the  cause  previous  to  the  judg- 
ment ;  of  the  execution  issued  thereon,  if  any  ;  and  of  the  return 
of  such  execution,  if  any,  subscribed  by  the  Justice  ;  with  a  cer- 
tificate (annexed  thereto  or  endorsed  thereon,)  of  the  clerk  of  the 
county  where  the  Justice  resides,  under  the  seal  of  the  court  of 
the  county,  specifying  that  the  person  subscribing  such  tran- 
script, was,  at  the  date  of  the  judgment  therein  mentioned,  a 
Justice  of  the  Peace  of  such  county,  will  be  good  evidence  to 
prove  the  facts  stated  in  such  transcript.   (2  R.  S.  364,  sees.  252, 3.) 

In  preparing  the  transcript,  the  Justice  has  only  to  copy  from 
his  docket,  and  subscribe  the  same.  To  this  copy  may  be  at- 
tached or  endorsed,  the  ofQcial  certificate  of  the  clerk,  thus  : 

Slate  of  New  York,  / 

•^  '  >    ss. 

Chenango  County  Clerk^s  Office.  ) 

I  certify  that  David  Long,  who  subscribed  the  within  (or  an- 
nexed) transcript,  was  at  the  date  of  the  judgment  therein  men- 
tioned, a  Justice  of  the  Peace  of  the  said  county.  In  testimony 
whereof,  I  have  hereunto  subscribed  my  name  and  affixed  the 
seal  of  said  county,  the  15th  day  of  June,  1849. 

[l.  s.]  James  Day,  Clerk. 

It  has  been  decided  that  a  transcript  from  a  Justice's  docket 
of  a  judgment  had  before  him,  may  be  made  and  certified  by  the 
Justice  after  the  expiration  of  his  office  ;  and  that  such  a  tran- 
script is  evidence  as  well  for  the  Justice  as  for  the  plaintiff'  in 
the  judgment  in  an  action  for  selling  property  by  virtue  of  an 
execution  on  such  judgment.  The  certificate  of  the  clerk,  in 
such  a  case,  must  be  made  by  the  clerk  of  the  county  where  the 
Justice  resided  at  the  time  of  the  rendition  of  the  judgment.  (8 
Wend.  393.) 


150  EVIDENCE. 

It  may  sometimes  happen  that  the  Justice's  docket  will  not 
show  specifically  what  demands  of  the  parties  were  submitted 
to  the  court  or  jury  ;  and  in  such  case,  parol  evidence  is  admis- 
sible to  show  the  facts.  The  proceedings  in  u  cause  before  a 
Justice,  may  be  proved  by  the  oath  of  the  Justice ;  but  he  must 
produce  the  written  evidence  of  his  proceedings,  as  far  as  in  his 
power.  (10  Wend.  525.)  As  a  general  rule,  Justices  should 
not  be  compelled  to  attend  to  prove  their  dockets.  One  object 
of  the  legislature,  in  prescribing  other  modes  of  proof,  was  to  re- 
lieve them  from  attending  as  witnesses  for  such  purpose.  (11 
Wend.  636.) 

In  an  action  on  a  Justice's  judgment,  if  it  be  proved  that  the 
docket  of  the  Justice  is  lost  or  destroyed,  or  cannot  be  produced 
after  reasonable  efforts  to  obtain  it,  proof  of  the  judgment  may 
be  given  and  repelled  as  other  facts.     (16  J.  R.  136.     J  2  id.  166.) 

If  a  Justice  be  dead  or  absent,  his  proceedings  in  a  cause  may 
be  proved  (after  proving  such  death  or  absence,)  by  producing 
the  original  minutes  entered  in  his  docket,  and  proving  his  hand- 
writing ;  or  they  may  be  proved  by  copies  of  such  minutes 
sworn  to  by  a  competent  witness,  as  having  been  composed  by 
him  with  the  original  entries,  with  proof  that  the  entries  are  in 
the  handwriting  of  the  Justice.     (2  R.  S.  364.  sec.  254.) 

The  Justice  may  state  in  his  docket  the  matters  which  were 
actually  tried  before  him,  and  what  was  submitted  to  or  with- 
drawn from  the  consideration  of  the  court  or  jury,  where  he  shall 
deem  cither  to  be  material.  The  transcript  then  shows  these 
facts. 

So  items  of  evidence  may  also  become  a  material  subject  of 
entry,  and  be  shown  in  the  same  manner.     (13  J.  R.  184.) 

Transcripts  from  the  dockets  of  Justices  of  the  Peace  in  other 
states,  are  governed  by  the  same  rules  of  proof  as  other  tran- 
scripts.    (Ijavvs  1836,  p.  658.) 

The  j)roceedings  of  public  notaries,  relative  to  the  protest  of 
bills  of  exchange  and  promissory  notes,  and  the  notice  of  such 
protest,  may  bo  proved  by  the  certificate  of  the  notary  under  his 
iiand  and  .seal,  stating  the  prpsenlmmt  of  the  bill  or  note  for  ac- 
ceptance or  payment,  the  protest,  and  the  time  and  mode  of  giv- 
ing' notic(!  llicreof  to  th(!  parties.     (2  R.  S.  382,  sec.  .53.) 

The  acts  of  tlu;  corporation  of  a  city  may  l)e  proved  by  sim- 
ply producing  the  original  minutes.  ((»  W(Mid.  ()51.  5  Wheat. 
420.') 


EVIDENCE  151 

Certified  copies  by  town  clerks,  and  other  officers  having  tlie 
■custody  of  papers  belonging  to  municipal  corporations,  are  made 
by  the  Revised  Statutes,  a  very  common  medium  of  proof. 

Sheriffs'  sales  of  real  estate,  may  be  proved  by  the  original 
•certificates  of  sale,  duly  acknowledged,  in  th(j  manner  required 
by  law  to  entitle  deeds  to  be  recorded  or  copies  of  the  same, 
■certified  by  the  clerk,  in  whose  office  the  originals  are  filed.  (2 
il.  S.  467,  sec.  46.) 

To  prove  papers  which  are  in  the  official  custody  of  the  clerks 
of  courts,  county  clerks,  and  the  proper  officers  of  municipal  cor- 
porations, copies  of  the  papers  must  be  certified  by  the  officers, 
under  his  seal  of  office,  if  h«  has  one.  The  following  is  the 
form  of  the  officer's  certificate : 

Chenango  County,  } 
Toivn  of  Oxford,  ) 
I  hereby  certify,  that  I  have  compared  the  above  with  the 
-original,  on  file  in  my  office,  and  the  same  is  a  correct  transcript 
-therefrom,  and  of  the  whole  of  said  original. 

William  Stow,  Clerk  of  said  Town. 

6.  Proof  of  Written  Instruments  and  Private    Writings. 

All  conveyances  or  writings  concerning  real  estate,  may  be 
proved  either  by  the  originals  themselves,  acknowledged,  oi 
proved  and  certified  in  the  manner  prescribed  by  law  ;  or  where 
they  have  been  executed,  by  the  records  thereof ;  or  by  certified 
transcripts  from  such  records.  (2  li,  S.  43,  sees.  19,  20.  Id, 
44,  sec.  29.) 

Wills  which  have  been  recorded,  may  be  proved,  either  by 
the  originals  properly  certified  by  the  surrogate,  or  by  exem- 
plified transcripts  from  the  records.  (2  R.  S.  120,  sec.  11.  Id. 
121,  sec.  21.)  In  other  cases,  they  must  be  proved  like  other 
sealed  instruments. 

Every  other  written  instrument,  except  promissory  notes  and 
bills  of  exchange,  may  be  proved  or  acknowledged  in  the  same 
manner  as  conveyances  of  real  estate  ;  and  the  certificate  oi 
the  proper  officer  endorsed  thereon,  shall  entitle  such  instru- 
ment to  be  received  in  evidence  on  the  trial  of  any  action,  with 
the  same  effect,  and  in  the  same  manner,  as  if  such  instrument 
were  a  conveyance  of  real  estate,     (2  R.  S.  500,  sec.  72.) 

Neither  the  certificate  of  the  acknowledgment,  or  of  the  prool 


i52  EVIDENCE. 

of  any  conveyance,  nor  the  record,  or  the  transcript  of  the 
record  of  such  conveyance,  shall  be  conclusive,  but  may  be 
rebutted,  and  the  force  and  eifect  thereof  may  be  contested,  by 
any  party  affected  thereby.  Jf  the  party  contesting  the  proof 
of  a  conveyance,  shall  make  it  appear  that  such  proof  was 
taken  upon  the  oath  of  an  interested  or  incompetent  witness, 
neither  such  conveyance,  nor  the  record  thereof,  shall  be  re- 
ceived in  evidence,  until  established  by  other  competent  proof. 
(2  R.  S.  43,  sec.  20.) 

Justices  of  the  Peace  may,  in  their  own  counties,  take  the 
proof  or  acknowledgment  of  instruments.  (Sess.  Laws  of  1840, 
ch,  238,  p.  187.)  The  proof  is  either  by  acknowledgment  of 
the  party  who  executed  the  instrument,  made  personally  to  the 
officer  ;  or  it  is  by  a  subscribing  witness.     (2  R.  S.  40,  sec.  4.) 

No  acknowledgment  of  any  conve^'^ance  or  other  instrument, 
shall  be  taken  by  any  officer,  unless  tlie  officer  taking  the  same, 
shall  know,  or  have  satisfactory  evidence,  that  the  person 
making  such  acknowledgment  is  the  individual  described  in^ 
and  who  executed  such  conveyance.     (2  R.  S.  42,  sec.  12.) 

FORMS    OF    ACKNOWLEDGMENTS. 

By  a  person  known  to  the  Justice. 

Chenango  County^  ss. — On  tliis  lOfli  day  of  Juno,  1849,  per- 
.sonally  came  before  me,  John  Smith,  whom  I  know  to  be  the 
individual  described  in,  and  who  executed  the  within  convey- 
ance, and  acknowledged  that  ho  executed  the  same. 

David  Long,  Justice  of  the  Peace 

of  the  County  of  Chenango. 

fUj  a  person  unknown  to  the  Justice,  hut  who  is  identified 
by  a  witness. 

CfunatiL'o  ('ounty.  ss.  On  lliis  Kllli  day  of  June,  1810,  per- 
sonally fanic  bcforf  nu;.  .Fnliii  Doc,  niid  .'Ktknowledgnd  that  he 
had  nxcfuk'd  the  within  conveyanc(^  :  ;nul,  at  the  same  time^ 
came  Peter  Brown,  residing  in  the  town  of  Sherburne  in  said 
coimly,  who  being  duly  sworn  hy  nic,  deposed  and  s;ud,  tliat 
lie  knew  the  person  making  th(^  said  acknowledgment  to  be  the 


EVIDENCE.  1511 

individual  described  in,  and  who  executed  the  said  conveyance  ; 
which  to  me,  is  satisfactory  evidence  thereof. 

David  Long,  Justice  of  the  Peace. 

By  husband  and  wife  known  to  the  Justice. 

Chenango  County ^  ss. — On  this  10th  day  of  June,  1849,  per- 
sonally came  before  me,  and  severally  acknowledged  that  they 
had  executed  the  within  conveyance,  John  Smith  and  Ann  his 
wife,  whom  I  know  to  be  the  individuals  described  in,  and  who 
executed  the  same  ;  and  said  Ann,  on  a  private  examination 
apart  from  her  husband,  acknowledged  that  she  executed  the 
said  conveyance  freely,  and  without  any  fear  or  compulsion  of 
her  husband. 

David  Long,  Justice  of  the  Peace. 

By  husband  and  iDife,  both  unknown  to  the  Justice,  but  who 
are  identijied  by  a  ivitness. 

Chenango  County^  ss. — On  this  10th  day  of  June,  1849,  per- 
sonally came  before  me,  and  severally  acknowledged  that  they 
had  executed  the  within  conveyance,  Richard  Roe  and  Agnes 
his  wife  ;  and  the  said  Agnes,  on  a  private  examination,  apart 
from  her  husband,  acknowledged  that  siie  executed  the  same 
freely,  without  any  fear  or  compulsion  of  her  husband  ;  and  at 
the  same  time  appeared  John  Doe,  residing  in  the  town  of 
Greene,  in  said  county,  who  being  by  me  duly  sworn,  deposed 
and  said,  that  he  knew  the  persons  making  the  acknowledg- 
ment as  aforesaid,  to  be  the  same  individuals  described  in,  and 
who  executed  the  within  conveyance  ;  which  to  me  is  satis- 
factory evidence  thereof 

David  Long,  Justice  of  the  Peace. 

By  husband  and  ivife — husband  known  to  the  Justice— wife 
unknown,  and  identified  by  a  witness. 

Chenango  County^  ss. — On  the  lOth  day  of  June,  1819,  per- 
sonally came  before  me,  and  severally  acknowledged  that  they 
had  executed  the  within  conveyance,  John  Doe  and  Mary  his 
wife  ;  and  I  certify  that  I  know  the  said  .Tohn  Doe  to  be  one  of 
the  individuals  described  in,  and  who  executed  tlie  same.  And 
the  said  Mary,  in  a  private  examination,  apart  from  her  husband, 


164  EVIDENCE. 

acknowledged  that  she  executed  the  said  conveyance  freely, 
and  without  any  fear  or  compulsion  of  her  husband ;  and  at 
the  same  time,  appeared  Richard  Roe,  residing  in  the  town  of 
Norwich  in  the  county  aforesaid,  who  being  by  me  duly  sworn, 
deposed  and  said,  that  he  knew  the  said  Mary,  who  made  the 
acknowledgment  as  aforesaid,  to  be  the  same  individual  de- 
scribed in,  and  who  executed  the  within  conveyance  ;  which  is 
to  me  satisfactory  evidence  thereof 

David  Long,  Justice  of  the  Peace. 

By  the  ax^knowledgtnent  of  four  persons — two  known  and 
two  identified. 

Chenango  County^  ss. — On  the  10th  day  of  June,  1849,  John 
Smith,  AVilliam  Stow,  Peter  Pray  and  Samuel  Hardy,  person- 
ally came  before  me,  and  severally  acknowledged  that  they 
executed  the  within  conveyance,  [or  instrument.]  At  the  same 
time  Thomas  Nokes,  residing  in  the  town  of  Norv^^ich,  in  the 
said  count}',  to  mc  well  known,  came  before  me,  and  being  by 
me  duly  sworn,  said  that  he  knew  Peter  Pray  and  Samuel 
Hardy,  two  of  the  persons  making  the  said  acknowledgment,  to 
be  two  of  the  individuals  described  in,  and  who  executed  the 
within  conveyance,  [or  instrument] ;  which  is  to  me  satisfactory 
evidence  thereof  I  know  John  Smith  and  William  Stow,  the 
other  two  persons  making  the  said  acknowledgment,  to  be  the 
other  two  persons  described  in,  and  who  executed  the  said  con- 
veyance, [or  instrument.] 

David  Long,  Justice  of  the  Peace. 

By  the  acknowledgment  of  a  person  conveying  by  virtue  of  a 
poiver  of  attorney. 

(Chenango  County^  ss. — On  the  10th  day  of  June,  1849,  John 
Smith  personally  came  before  me,  and  acknowledged  that  he 
executed  the  within  conveyance,  [or  instrument,]  as  the  act  and 
deed  of  William  Stow  therein  described,  by  virtue  of  a  power  of 
attorney  duly  executed  by  the  said  William  Stow,  bearing  date 
the  25th  day  of  May,  1819,  recorded  in  the  oflice  of  the  clerk  of 
the  coiuify  of  Chenango.  I  know  (he  said  John  Smith  who 
mnde  tlif  said  acknowledgment,  to  l)e  the  same  iudividnal  who 
executed  ilie  witliiu  conveyance,  [or  instrument]  [or,  if  the 
person  is  u/iknowji  to  the  Justice,  and  is  identified,  then  say  :] 


EVIDENCE.  155 

At  the  same  time,  Richard  Roe,  residing  in  the  town  of 
Norwich,  in  said  county,  to  me  well  known,  came  before  me, 
and  being  by  me  duly  sworn,  said  that  he  knew  the  person 
who  made  the  said  acknowledgment,  to  be  the  same  individual 
who  executed  the  within  conveyance,  [or  i7istrunient :]  which 
is  to  me  satisfactory  evidence  thereof. 

David  Long,  Justice  of  the  Peace. 

By  the  ackno^oledgment  of  a  deputy  sheriff  of  a  deed  exe- 
cuted by  him  in  the  riame  of  the  sheriff. 

Chenango  Counly^  ss. — On  this  10th  day  of  June,  1849, 
Philip  Livingston,  whom  I  know  to  be  the  individual  described 
in,  and  who  executed  the  within  conveyance,  personally  came 
before  me,  and  acknowledged  that  he,  as  a  general  deputy  of 
Isaac  Jones,  Esq.,  the  sheriff  of  the  said  county,  executed  the 
within  conveyance  in  the  name,  and  as  the  act  and  deed  of  the 
said  sheriff. 

David  Long,  Justice  of  the  Peace. 

FORMS  of  certificates  OF  PROBATES  OF  DEEDS,  AND  OTHER 
INSTRUMENTS  BY  A  SUBSCRIBING  WITNESS,  BEFORE  A  JUS- 
TICE OF  THE  PEACE. 

By  a  subscribing  witness  known  to  the  Justice. 

Chenango  County^  ss. — On  the  15th  day  of  May,  1849,  John 
Doe  with  whom  I  am  personally  acquainted,  came  before  me, 
and  being  by  me  duly  sworn,  said  that  he  \vas  a  resident  of  the 
town  of  Norwich,  in  said  county,  that  he  saw  Richard  Roe  exe- 
cute the  within  conveyance,  [or  instrument^']  that  he,  the  said 
■John  Doe,  subscribed  his  name  thereto  as  a  witness,  and  that 
he  knew  the  said  Richard  Roe  to  be  the  person  described  in, 
and  who  executed  the  said  conveyance,  [or  instrutnent.] 

David  Long,  Justice  of  the  Peace. 

By  a  subscribing  witness,  unknown  to  the  Justice,  but  identified 
by  another  witness. 

Chenango  County,  ss. — On  the  15th  day  of  May,  1849.  John 
Doe  came  before  me,  and  being  by  me  duly  sworn,  said  that  he 
resided  in  the  town  of  Oxford  in  the  said  county,  that  he  saw 
Richard  Roe  execute  the  within  conveyance,  [or  instrument,] 


156  EVIDENCE. 

that  he,  the  said  John  Doe,  subscribed  his  name  thereto  as  a 
witness,  and  that  he  knew  the  said  Richard  Roe  to  be  the  per- 
son described  in,  and  who  executed  the  said  conveyance,  [or 
instrument.^  At  the  same  time  Henry  Brown  residing  in  the 
town  of  Oxford,  in  said  county,  with  whom  I  am  personally 
acquainted,  came  before  me,  and  being  by  me  duly  sworn,  said 
that  he  knew  the  said  John  Doe  to  be  the  same  person  who 
was  tlie  subscribing  witness  to  the  within  conveyance,  [or  in- 
strument,] which  is  to  me  satisfactory  evidence  thereof. 

David  Lomg,  Justice  of  the  Peace. 

Bi/  a  subscribing  witness  as  to  the  identity  of  the  husband^  and 
acknowledgement  by  the  wife — wife  and  subscribing  witness 
both  known  to  the  justice. 

Chenango  County,  ss. — On  the  15th  day  of  June,  1849,  John 
Smith,  with  whom  I  am  personally  acquainted,  came  before  me, 
and  being  by  me  duly  sworn,  said  that  he  resided  in  the  town 
of  Norwich,  in  the  said  county,  that  he  saw  Henry  Brown  exe- 
cute the  within  conveyance,  [or  instrument,]  that  he  subscribed 
his  name  thereto  as  a  witness,  that  he  knew  the  said  Henry 
Brown  to  be  one  of  the  individuals  described  in,  and  who  exe- 
cuted the  Avilhin  conveyance,  [or  instrument.]  At  the  same 
time  Sarah  Brown,  the  wife  of  the  said  Henry  Brown,  whom  I 
know  to  be  the  same  individual  described  in,  and  who  executed 
the  said  conveyance,  [or  instrument,]  came  before  me,  and  on 
a  private  examination,  apart  from  her  husband,  acknowledged 
that  she  executed  the  within  conveyance  [orinstruf?ie7it,]  freely, 
and  without  any  fear  or  compulsion  of  her  husband. 

David  Long,  Justice  of  the  Peace. 

liy  a  subscribing  witness  as  to  the  identity  of  the  husband,  and 
acknovlcdgmcul  by  the  wife — wife  and  subscribing  witness 
uuknoiDn  to  the  Justice,  but  identified  by  another  witness. 

(Jhenango  County,  ss.-On  the  15th  day  of  Jimc,  1849,  John 
Smith  came  before  mc,  and  being  by  me  duly  sworn,  said  that 
he  resided  in  the  town  of  Norwich,  in  the  said  county,  that  he 
saw  Richard  Roe  execute  the  within  conveyance,  [or  instru- 
m,eut,]  that  he  subscrihod  his  name  thereto  as  a  witness,  and 
that  lie  knew  the  said  Jlichard  Jioe  to  bo  the  person  described 
in,  and  who  executed  the  said  conveyance,  [or  instrmnent.]    At 


EVIDENCE.  J57 

the  same  time  Jane  Roe,  wife  of  the  said  Richard  Roe,  came 
before  me,  and  on  a  private  examination  apart  from  her  hus- 
band, acknowledged  that  she  executed  tiie  within  conveyance, 
[or  instruments^  freely,  and  without  any  fear  or  compulsion  of 
her  husband.  At  the  same  time  Henry  Brown,  residing  in  the 
town  of  Norwich,  in  the  said  county,  with  whom  I  am  person- 
ally acquainted,  came  before  me.  and  being  by  me  duly  sworn, 
said  that  he  knew  the  said  John  Smith  to  be  the  same  person 
who  was  a  subscribing  witnesss  to  the  within  conveyance,  [or 
instrument. ^^  and  that  he  also  knew  the  said  Jane  Roe  who 
made  the  said  acknowledgment,  to  be  the  individual  described 
in,  and  who  executed  the  within  conveyance,  [or  instrume7it,] 
which  to  me  is  satisfactory  evidence  thereof. 

David  Long,  Justice  of  the  Peace. 

FORM    OF    COUNTY    CLERk's    CKKTIFICATE. 

Chenango  County  i 

Clerks'  Office.      S  **' 

I  certify  that  David  Long,  whose  name  is  signed  to  the  sub- 
joined certificate  of  proof,  [or  acknowledgment s]  was,  at  the  time 
when  the  same  purports  to  have  been  taken,  a  Justice  of  the 
Peace  of  the  said  county,  and  duly  authorized  to  take  the  same. 
And  I  further  certify  that  I  am  well  acquainted  with  the  hand- 
writing of  the  said  David  Long,  such  Justice  as  aforesaid,  and 
verily  believe  that  the  signature  to  the  said  certificate  of  proof, 
\or  ack7iowledgment,]  is  genuine. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed 
the  ofiicial  seal  of  the  clerk  of  the  said  county,  the  10th  day  of 
July,  in  the  year  one  thousand  eight  hundred  and  fortj^^-nine. 

[l.  s.j  Alfred  Wheeler, 

Clerk  of  Clienango  County. 

An  acknowledgment  or  proof,  before  one  who  styles  himself 
a  judge,  commissioner,  or  other  ofiicor  having  authority  to  take 
such  proof  or  acknowledgment,  is  prima  facie  evidence  that  he 
was  such  ;  and  it  is  not  necessary  for  a  person  who  offers  a 
writing  so  acknowledged,  to  produce  the  commission  of  the 
officer  who  took  the  proof  or  acknowledgement,  or  to  give  any 
further  evidence  to  prove  his  authority,  until  some  evidence  is 
given  on  the  other  side  to  render  that  fact  questionable. 

Where  the  instrument  has  not  been  acknowledged  and  certi- 


158  EVIDENCE. 

fied,  the  execution  of  it  must  be  proved  by  the  subscribing  wit- 
ness, if  there  be  one,  or  if  not,  by  proof  of  handwriting.  (1 
Saund.  PI.  and  Ev.  425.     19  Wend.  437.) 

In  the  case  of  a. deed  or  instrument  under  seal,  to  which  there 
is  a  subscribing  witness,  proof  of  tlie  confession  of  tlie  party 
that  iie  executed  the  deed,  is  not  sufficient,  but  the  subscribing 
witness  must  be  produced,  or  if  he  cannot  be,  his  handwriting 
must  be  proved.     (3  J.  R.  477.) 

A  deed  executed  by  a  third  person,  not  a  party  to  the  suit,  to 
which  there  is  a  subscribing  witness,  cannot  be  proved  by  the 
party  executing  it,  nor  by  the  party  to  whom  it  is  given,  but 
the  subscribing  witness  should  be  cahed.  (1  Phil.  Ev.  465,  9 
J.  R.  136.) 

If  there  are  two  or  more  subscribing  witnesses,  the  calling 
one  to  prove  the  instrument  is  sufficient.  Or  if  the  absence  of 
all  of  them  be  accounted  for,  proof  of  the  ha?idwriting  of  one 
of  them,  or  of  the  parti/  signing  the  instrwment,  will  be  suf- 
ficient.    (11  J.  R.  64.     12  id.  188.) 

But  if  there  are  two  or  more  subscribing  witnesses,  it  is  not 
enough  to  prove  one  of  them  dead,  or  out  of  the  jurisdiction  of 
the  court,  and  then  prove  his  handwriting  with  that  of  the 
party;  but  the  absence  of  all  the  subscribing  witnesses  must 
be  accounted  for.     (5  Cow.  385.) 

In  cases  where  there  is  no  subscribing  witness  to  a  written 
instrument,  or  the  subscribing  witness  denies  having  any  know- 
ledge of  its  execution  ;  or  where  the  name  of  a  fictitious  person 
is  inserted  ;  or  where  the  attesting  witness  was  interested  at 
the  time  of  the  execution,  and  continues  so  at  the  time  of  trial ; 
or  where  the  person  who  has  put  his  name  as  subscribing  wit- 
ness, did  so  without  the  knowledge  or  consent  of  the  parties  ; 
or  if,  after  diligent  inquiry,  nothing  can  be  heard  of  the  sub- 
scribing witness,  so  that  he  can  neither  be  produced  himself, 
nor  his  handwriting  be  proved  ;  or  if  at  the  time  of  its  execu- 
tion he  was  of  such  an  infamous  character,  as  to  make  him  in- 
<;on)j)etent  to  give  evidence;  in  these  cases  the  instriunent  may 
III'.  ])r()V<(l  by  proving  the  hand -writing  of  the  pnrty  ;  or  by  any 
person  present  at  tiie  ex(!Cution,  tliongh  he  did  not  subscribe  it 
as  a  witness;  or  liy  j)roof  of  lh(!  admission  of  the  party  that  he 
executed  the  instrument.     (I  IMiil.  I'lv.  475,  476.) 

The  siniplf'st  and  rnf);;t  obvious  proof  of  handwriting  is  the 
testimony  of  a  witness  who  saw  the  paper  or  signature  actually 


EVIDENCE.  159 

written.     But  it  is  not  often  that  such  direct  evidence  can  be 
produced.     (1  Phil.  Ev.  483.) 

The  handwriting  of  a  person  may  therefore  be  sufficiently- 
proved  by  a  witness  who  is  previously  acquainted  with  his 
handwritmg,  and  who  testifies  that  he  believes  the  handwriting 
in  question  to  be  his.  This  previous  acquaintance  with  the 
handwriting  of  a  person  may  be  deiivcd  either  from  having 
seen  the  person  write  or  from  papers  received  in  the  course  of 
business,  which  there  is  sufficient  reason  to  believe  were  written 
by  the  party — as  letters,  notes  which  have  been  paid,  (fcc.  (Id, 
484.) 

Handwriting  cannot  be  proved  by  comparing  the  paper  in  dis- 
pute with  other  papers  acknowledged  to  be  genuine  either  by 
a  witness,  or  by  the  Justice  or  jury.     (19  J.  R.  134.) 

Where  an  action  is  founded  upon  a  scaled  instrument,  the 
seal  is  only  presumptive  evidence  of  a  consideration,  which 
may  be  re-butted  in  the  same  manner,  and  to  the  same  extent, 
as  if  the  instrument  were  not  sealed.     (2  R.  S.  504,  see.  90.) 

Bills  of  exchange  and  promissory  notes  must  bo  proved  by 
the  production  of  the  originals  and  proof  of  the  handwriting  of 
the  party.  If  the  note  or  bill  has  been  lost,  the  plaintiff,  on 
proving  such  loss,  (which  he  may  do  by  his  own  oath,)  v/ill  be 
allowed  to  give  parol,  or  other  secondary  evidence,  of  its  con- 
tents. (2  R,  S.  503,  sees.  94,  95,  12  Wend.  173.)  But  if  the 
note  so  lost  were  negotiable  before  the  plaintiff  can  recover, 
he  must  give  the  opposite  party  a  bond  of  indemnity.  (2  R.  S. 
503,  sec.  95.) 

In  an  action  by  a  payee  against  the  acceptor  of  a  bill  of  ex- 
change, or  against  the  maker  of  a  promissory  note,  you  must 
produce  the  note  or  bill,  and  prove  the  handwritmg  of  the  de- 
fendant. But  if  the  action  be  brought  by  an  endorsee,  he  must 
also  prove  the  handwriting  of  the  first  endorser  and  of  the  inter- 
mediate endorsers,  if  they  be  mentioned  in  the  complaint. 
(Arch.  Pr.  167.) 

In  an  action  by  an  endorsee  against  an  endorser  of  a  bill  of 
exchange,  or  promissory  note,  or  drawer  of  a  bill  of  exchange, 
you  must  produce  the  bill  or  note,  and  prove  the  defendant's 
handwriting.  You  must  also  prove  a  presentment  for  payment 
or  acceptance,  and  refusal,  and  that  the  defendant  had  due  no- 
tice thereof  (Peake's  Ev.  235.)  The  presentment,  protest  and 
notice  may  be  proved  by  the  notary's  certificate. 


160  EVIDENCE. 

In  an  action  by  drawer  against  acceptor,  produce  the  bill  and 
prove  the  acceptance.     (Peake's  Ev.  236.     1  Arch.  Pr.  168.) 

When  the  original  or  the  copy  of  any  paper  is  necessary  as 
proof,  even  the  confession  of  the  party  against  whom  it  is  in- 
tended to  be  used  will  not  dispense  with  the  necessity  of  the 
regular  proof,  juilcss  such  admission  is  made  in  court.  (6  J.  R. 
9.     10  id.  248.) 

The  rule  that  the  instrument  itself  must  be  produced,  does  not 
extend  to  mere  written  acknowledgments  of  facts  or  memoran- 
dums. Thus,  though  a  receipt  be  given,  payment  may  be 
proved  in  any  other  way ;  and  so,  though  a  memorandum  be 
made  by  a  witness,  if  he  can  remember  the  same  facts  without 
it,  he  is  not  bound  to  produce  it ;  and  so  of  an  account  book  or 
an  original  entry  touching  an  account.  (Gow.  &  Hill's  Notes, 
1234.  1240.)  And  a  notice,  though  in  writing,  may  always  be 
proved  by  parol. 

It  is  a  general  rule  that  parol  evidence  is  not  admissible  to 
contradict,  vary,  or  add  to  writen  agreements,  whether  special- 
ties or  simple  contracts.*     (1  Cow.  R.  249.     1  J.  R.  139.     3  id. 


*  "  So  far  as  a  written  contract  is  clear,  either  in  its  particular  words  or  upon  a 
consideration  of  its  legal  efTect,  no  evidence  extrinsic  to  the  writing  can  be  re- 
ceived to  contradict,  vary,  or  e-xplain  its  meaning.  Thus,  in  case  a  note  is  ex- 
pressed to  be  payable  sucli  a  day,  you  cannot  show  that  the  parties  intended  some 
other  day.  So  also,  a  promise  to  pay  simply,  without  saying  what  day,  is,  in  legal 
cfTect,  a  promise  to  pay  on  demand  ;  and  therefore  you  cannot  show  orally  an  intent 
to  pay  at  any  particular  day. 

"But  written  contracts  are  often  obscure  or  ambiguous,  owing  to  their  using 
words  which  are  in  themselves  of  doubtful  or  double  meaning,  or  wliich  are  made 
80  Ly  referring  either  expressly  or  tacitly  to  some  subject  not  specifically  described 
by  them.  In  all  these  cases  they  may  be  made  certain.  This  cannot  be  done  by 
showing  what  any  party  or  parties  declared,  either  before  or  at  tiie  time  o[  execu- 
ting the  writing,  they  meant  by  the  particular  words  used  in  it.  It  must  generally 
be  (lone  by  circumstances  entirely  independent  of  such  declarations.  Take  the 
case  of  words  doubtful  on  their  face,  or  even  having  no  meaning  of  themselves  to 
the  mind  of  the  general  reader;  yet  to  a  man  conversant  with  the  particular  sub- 
ject, trade  or  business  to  which  they  relate,  or  the  local  language  of  t'le  place 
where  the  contract  was  drawn,  it  may  be  very  plain.  lie  may  therefore  be  re- 
ceived as  a  witness  to  explain  the  meaning. 

"  Words  arc  nometimcH  abbreviati-d  in  contracts,  and  they  are  sometimes  written 
in  a  foreign  language  ;  but  the  contract  ought  not,  for  that  reason,  to  fail.  So 
where  a  word  may  mean  two  things — the  word  fici<j;ht  for  in>tance.  This  may 
mean  iho  rent  of  a  ship  or  the  cargo.  In  a  contract  assigning  the  freight  of  a  cer- 
tain (thip  therefore,  which  leaves  it  doubtful  what  the  paities  intended,  you  may 
show  circuniHtancea  lo  fix  the  mcauuig.     For  iubtanco,  if  neither  party  owned  the 


EVIDENCE.  XgX 

68.)  This  rule  is,  however,  confined  to  parties  and  privies,  and 
does  not  extend  to  strangers  who  are  interested  in  knowing  the 
real  truth  of  the  case. 

But  a  receipt,  although  drawn  in  absolute  terms  and  expressed 
to  be  in  full,  is  not  conclusive,  and  parol  evidence  is  admissible, 
either  to  explain  or  show  a  mistake  in  it.  And  parol  evidence 
has  been  allowed  to  be  given  of  a  receipt  without  accounting 
for  the  absence  of  the  writing.     (7  Cow.  334.     5  J.  R.  68.) 

Parol  evidence  may  also  be  given  of  fraud,  or  the  want  or 
failure  of  consideration,  or  the  enlargement  of  time  for  perform- 
ance, or  the  waiver  of  the  performance  of  a  written  simple  con- 
tract.    (1  Cow.  250.     3  J.  R.  528.) 


ship  at  the  time,  but  the  assignor  did  own  the  cargo,  you  might  infer  from  thence 
that  they  meant  to  speak  of  the  latter. 

"  With  regard  to  the  subject  matter  of  the  contract,  extrinsic  evidence  is  almost 
always  necessary  ;  and  it  is  admissible,  though  the  reference  to  it  by  the  contract 
be  in  itself  altogether  uncertain  and  unintelligible.  Suppose,  for  instance,  a  man 
make  a  contract  to  sell  the  horse,  without  any  other  words.  Upon  showing  that 
at  the  time  he  owned  but  one  horse,  the  description  would  be  made  sufficiently  cer- 
tain ;  for  it  would  be  intended  that  he  would  not  sell  a  horse  not  his  own,  and  hav- 
ing  but  one,  he  could  not  refer  to  any  other. 

"  So  where  the  words  or  phrases  of  reference  appear  to  be  certain  on  their  face, 
an  ambiguity  often  arises  from  an  attempt  to  apply  them.  The  difficulty  thus  ari- 
eing  from  extrinsic  matter  is,  therefore,  called  a  latent  ambiguity  :  as  where  there 
are  several  persons  or  things  which  will  answer  to  the  description  in  the  agreement. 
Thus,  if  James  Jackson  agree,  in  writing,  to  sell  his  horse  to  John  Doe,  and  there 
are  two  or  more  persons  of  that  name,  parol  evidence  my  be  given  to  show  which 
was  intended,  and  so  in  the  like  instances.  In  such  a  case  the  declaration  of  the 
party  may  be  received,  though  confined  to  cases  where  the  designation  in  the  con- 
tract applies  equally  to  each  of  two  persons  or  things. 

"  You  may  show  another  writing,  executed  at  the  same  time,  of  an  equal  de- 
gree with  ihe  main  one,  varying  or  defeating  the  latter ;  for  these  will  be  deemed 
parts  of  one  entire  contract.  So  the  writing  may  refer,  as  a  part  of  itself,  to  ano- 
ther  contract,  written  or  oral.  Then  the  latter  may  be  proved  by  writing  or  parol, 
according  to  the  fact.  So  an  absolute  bill  of  sale  may  be  shown  by  parol  to  have 
been  intended  as  a  mortgage.  Blanks  and  clerical  omissions  may  be  supplied. 
Strangers,  not  parties,  may  show  the  true  intent  by  parol.  A  mere  receipt  may  be 
thus  contradicted  or  explained,  even  by  the  party.  So  of  a  clause  in  a  deed  or  bill 
of  sale,  acknowledging  the  receipt  of  the  consideration.  So  the  maker,  as  between 
himself  and  the  payee,  may  contradict  the  acknowledgment  in  a  note  of  value  re- 
ceived. The  party  may  also  show  fraud  or  illegality  of  consideration,  or  vary,  by 
parol  evidence,  the  time  of  delivery  from  the  date.  So  he  may  vary  the  contract, 
by  showing  a  subsequent  one,  on  good  consideration,  and  equal  in  degree. 

"  Where  a  contract  rests  partly  in  writing  and  partly  in  parol,  oral  proof  is  adniis- 
€ible  to  supply  the  deficiencies  in  the  part  written,  if  the  contract  be  of  such  a  na- 
ture  as  is  not  required  to  be  in  writing."     (2  Cow.  Tr.  3d  ed.  418.) 

11 


162  EVIDENCE. 

7.  Books  of  Account. 

The  constant  dealings  and  daily  intercourse  of  a  commercial  or 
pecuniary  nature,  which  one  citizen  has  with  another,  especially 
as  this  country  increases  in  manufactures  and  commerce,  ren- 
der it  next  to  impossible  to  call  witnesses  to  every  transaction, 
and  very  laborious  and  inconvenient,  to  reduce  to  writing  every 
contract  in  which  om-  wants  and  interests  are  hourly  leading  us 
to  engage.  This  has  given  rise  to  the  practice  of  memoran- 
dums in  the  form  of  books.  These  memorandums  or  books  of 
account,  are,  by  the  general  assent  of  the  community,  received  as 
evidence  of  the  transactions  written  in  them,  and  have  at  length 
received  the  sanction  of  our  highest  courts  of  justice.  They 
are  admitted  from  the  necessity  of  the  thing,  in  derogation  of  an 
ancient  principle  of  the  common  law,  that  a  party  ought  not  to 
be  permitted  to  furnish  evidence  for  himself.  The  manner  of 
keeping  them,  in  the  country,  renders  them  in  many  instances, 
very  unsatisfactory  evidence,  and  makes  it  necessary  to  exam- 
ine them  with  caution.  The  character  of  the  man  who  keeps 
the  books,  the  fairness  or  unfairness  of  the  books  from  their  ap- 
pearance, the  time  and  manner  of  making  the  entries  ;  whether 
the  items  are  in  the  ordinary  course  of  a  man's  trade,  or  busi- 
ness, or  of  an  extraneous  or  suspicious  nature  ;  whether  any, 
and  what  other  evidence  is  given  to  corroborate  the  charges  ; 
all  these  are  proper  subjects  for  the  due  consideration  of  the  Jus- 
tice or  jury. 

To  render  a  book  of  account  evidence,  it  must  be  produced  at 
the  trial,  and  either  proved  by  the  clerk  who  made  the  entry,  or 
by  proof  of  the  clerk's  death,  and  then  proving  his  handwri- 
ting. (1  Arch.  Pr.  108.)  If  the  party  had  no  clerk,  before  his 
books  can  be  admitted  in  evidence,  it  must  be  proved  that  he 
had  no  clerk  ;  that  some  of  the  articles  have  been  delivered  ;  that 
the  books  produced  ar(!  the  liooks  of  the  party  ;  and  that  he  keeps 
fair  and  honest  accounts — and  this  by  those  who  have  dealt 
and  setjled  with  him.  (12  J.  R.  401.)  Under  these  restrictions, 
from  ihe  necessity  of  the  case,  and  the  consideration  that  the 
parly  drbiicd  is  shown  lo  have  reposed  coniidence  by  dealing 
with,  and  l)f;iiig  cnliiisicd  l)y  the  other,  they  are  evidence  for  the 
consideration  ol  th(!  Jiisiico  or  jury.     (12  J.  R.  401.) 

The  oath  of  a  clerk,  that  he  bcMrves  his  entries  to  be  true, 
though  he  has  lost  all  personal  recollection  of  having  delivered 


EVIDENCE.  153 

the  goods  charged,  makes  the  books  evidence  as  original  entries. 
(4  Wend.  R.  306.) 

The  following  rules  in  reference  to  account  books,  are  taken 
substantially  from  Cowen's  Treatise  : 

1.  If  it  appears  that  there  is  common  law  proof  of  the  entries,  \ 
independently  of  the  ordinary  book  proof,  the  latter  is  inadmis-  ■ 
sible  ;  as  if  the  party  have  a  clerk,  or  the  goods  are  delivered,  or 
work  done,  by  a  servant  who  can  prove  the  fact. 

2.  The  entries  must  be  made  in  the  book,  at  or  near  the  time 
of  the  transactions,  and  should  be  memoranda  of  the  transac- 
tions as  they  occur.  The  party  may  first  write  his  accounts  on 
a  slate,  and  afterwards  enter  them  in  his  book  ;  but  such  entries 
should  be  made  daily.  One  of  two  butchers,  partners,  were  in 
the  habit  of  marking  the  scores  of  meat,  with  chalk,  on  a  cart, 
and  the  other  copied  the  scores  into  a  book — this  was  held  ad- 
missible. (20  Wend.  76.)  The  time  and  mode  of  making  en- 
tries depends  much  upon  the  business.  As  a  general  rule,  the 
work  must  be  actually  done,  before  it  can  be  charged.  Trades- 
men, however,  may  charge  their  work  on  book,  vviiile  it  is  in 
progress  in  the  hands  of  journeymen,  if  accustomed  to  do  so. 

3.  The  entry  must  be  made  in  the  book  of  the  party  which 

is  kept  by  him  for  the  purpose  of  his  daily  accounts  generally,      ; 
with  all  those  persons  who  may  have  dealings  with  him.     They     [ 
must  be  made  in  the  prevalent  manner  of  his  keeping  the  book, 
and  in  regular  course  with  other  charges.     If  they  stand  insu- 
lated, as  on  the  first  leaf,  not  falling  into  regular  order  with  other 
charges ;  or  be  on  a  separate  sheet,  especially  when  it  appears    I 
that  tlie  part^Hceeps  an  account  book — or  on  a  leaf  torn  out  of  a     1 
book — or  on  one  of  the  last  pages  separated  from  other  charges     .' 
by  intervening  blank  leaves, — they  are  not  admissible. 

4.  The  book  must  contain  the  original  entries  made  by  the 
party  himself;  though  this  will  be  excused,  if  he  cannot  write. 

5.  The  book  may  be  kept  in  the  form  either  of  a  day-book, 
journal  or  ledger.  But  it  must  appear  that  the  entries  were  in- 
tended as  an  account  against  the  party  sought  to  be  charged. 
Erasures  and  interlineations  go  to  the  credit  of  the  book.  But 
they  are  open  to  explanation,  and  do  not  necessarily  render  it 
incompetent  evidence.  If,  hov/ever,  suspicious  and  unexplained, 
they  will  destroy  its  credit  altogether  ;  and  so  of  any  other 
fraudulent  appearances.  If  the  party  keeps  both  a  day-book  '\ 
and  ledger,  both  should  be  produced  ;  for  one  might  show  a  pay-  ^ 


164  EVIDENCE. 

ment  when  the  other  did  not.  Ahnost  any  series  of  figures,  ab- 
breviations, and  words,  which  can  be  explained  into  a  significa- 
tion, will  do  for  particular  charges,  if  conformable  to  the  party's 
ordinary  course  of  making  his  entries — to  the  language  he  speaks 
— his  degree  of  education,  and  the  nature  of  his  business.  But 
they  should  be  specific,  denoting  the  particular  work  or  sum 
charged,  and  attaching  the  price  or  value  to  each  item.  A  brick- 
layer's charge  of  "  190  days'  work,"  and  a  physician's  charge 
for  "  medicine  and  attendance,"  were  rejected  as  indefinite.  A 
receipt  in  an  account  book,  purporting  to  be  signed  by  the  ven- 
dee, is  not  admissible  as  an  original  entry ;  and  any  entry  it 
would  seem,  amounts  to  nothing  unless  the  price  be  carried  out. 

6.  Whether  the  original  entries  be  relied  on  as  those  of  the 
party,  or  be  proved  by  the  clerk  who  made  them,  but  who  is  un- 
able to  speak  independently  of  the  book,  it  must  be  produced  ; 
a  copy  is  not  admissible,  or  at  least  not  until  the  absence  of  the 
original,  be  satisfactorily  accounted  for.  But  the  book  is,  in  nei- 
ther case,  evidence  of  a  higher,  but  rather  of  an  inferior  degree, 
to  common  law  proof.  If  the  latter  be  attainable,  the  party  must 
of  course,  resort  to  it ;  and  it  will  be  no  objection  that  his  book 
is  not  adduced.  But  the  non-production  of  it,  if  the  book  be 
called  for  by  his  adversary,  would  be  a  heavy  circumstance 
against  him.  If  the  entries  were  made  by  a  clerk,  and  he  be 
dead,  his  handwriting  may  be  proved.  Then  on  showing  that 
he  was  clerk,  the  entries  may  be  read  and  become  satisfactory 
evidence. 

7.  Books  are  evidence  of  the  sale  and  delivery  of  goods,  ser- 
vices done,  materials  found,  and  retainer  to  do  the  service  to- 
gether with  the  prices  carried  out  respectively.  The  book,  like 
a  confession,  is  to  be  taken  altogether  with  its  charges  and 
credits. 


CHAPTER    IX. 


OF    TRIAL    AND    ITS    INCIDENTS. 


The  subjects  of  this  chapter,  are  the  folio  whig  : 
1.  Definition  and  Nature  of  Trial. 
2  The  Swearing  of  Witnesses. 

3.  Effect  of  Deficiency  in  Proof. 

4.  Drawing  and  Swearing  of  Jury. 

5.  Challenges  ;  to  the  Array  ;  to  the  Polls. 

6.  Manner  of  Conducting  Trial. 

7.  Examination  of  Witnesses. 

8.  What  Evidence  may  be  given  by  Witness. 

9.  Of  Impeaching  a  Witness. 

10.  Of  the  Justice's  Discretion  in  Admitting  or  Rejecting 
Testimony. 

11.  Of  Weighing  the  Testimony  of  Witnesses. 

12.  Of  Agreeing  upon,  and  Rendering  a  Verdict. 

A  trial  is  the  judicial  examination  of  the  issues  between  the 
parties,  whether  they  be  issues  of  law  or  of  fact. 

In  Justices'  Courts,  it  is  very  usual  for  the  parties  to  try  their 
cause  before  the  Justice  alone.  This  they  must  do,  if  before 
the  commencement  of  the  examination  of  witnesses,  or  the  re- 
ceiving of  other  evidence  to  the  point  in  issue,  neither  party 
demands  a  jury.     (2  R.  S.  339,  sec.  94.) 

The  Justice  after  hearing  the  testimony,  and  any  remarks  the 
parties,  either  by  themselves,  or  through  their  attornies,  may 
have  to  make  in  relation  to  it,  decides  according  to  law  and  the 
very  right  of  the  case.     (Id.  sec.  92.) 

The  Justice's  position  as  arbiter  of  both  law  and  fact,  in  the 
two-fold  capacity  of  judge  and  jury,  is  one  of  great  responsi- 
bility. Each  case,  therefore,  should  receive  full  and  deliberate 
consideration,  and  a  decision  only  be  given,  after  it  has  been 
thoroughly  investigated.  A  habit  of  cautious  circumspection 
in  the  Justice,  will  prevent  much  subsequent  litigation. 

It  will  assist  the  Justice  in  the  trial,  and  in  his  decision  on 
the  merits,  to  keep  the  issue  between  the  litigant  parties,  that 


166  OF  TRIAL  AND  ITS  INCIDENTS. 

is,  what  they  have  affirmed  on  one  side,  and  denied  on  the 
other,  constantly  in  view.  Persons  unaccustomed  to  legal  in- 
vestigation, are  very  apt  to  drag  into  their  altercations  on  trial, 
a  great  deal  of  extraneous  matter.  This  should,  if  possible,  be 
prevented. 

The  trial  of  a  cause  before  a  Justice  alone,  though  similar  to 
the  conduct  of  a  suit  before  a  jury,  of  which  we  shall  presently 
treat,  very  often  consists  of  the  mere  examination  of  witnesses, 
and  a  submitting  of  the  case,  on  the  evidence,  to  the  Justice, 
without  comment  or  argument. 

No  other  than  the  Justice  who  tries  the  cause,  has  power  to 
swear  the  witness.     (1  J.  R.  520.) 

I'he  following  is  the  most  usual  oath  administered,  the  person 
who  swears,  laying  his  right  hand  upon,  and  kissing  the 
Gospels  : 

"  You  do  swear  that  the  evidence  you  shall  give  relating  to 
the  matter  in  difference,  between  John  Smith  plaintiff,  and 
Peter  Pray  defendant,  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth." 

Instead  of  the  foregoing,  every  person  who  wishes  it,  shall  be 
permitted  to  swear  in  the  following  form  :  "  You  do  swear  in 
the  presence  of  the  ever  living  God  ;"  and  while  so  swearing, 
such  person  may  or  may  not  hold  up  his  hand,  in  his  discre- 
tion.    (2  R.  S.  504,  sec.  102.) 

Every  person  who  shall  declare  that  he  has  conscientious 
scruples  against  taking  any  oath,  or  swearing  in  any  form,  shall 
be  permitted  to  make  his  solemn  declaration,  or  affirmation,  in 
the  following  form  :  ••  You  do  solemnly,  sincerely,  and  truly, 
declare  and  affirm."     (Id.  103.) 

Whenever  the  coiut  before  which  any  person  shall  be  offered 
as  a  witness,  shall  be  satisfied  that  such  person  has  any  peculiar 
mode  of  swearing  connected  with,  or  in  addition  to,  the  laying 
of  his  liand  upon  the  Gospels,  and  kissing  the  same,  which  is 
more  solemn  and  obligatory  in  the  opinion  of  such  person,  the 
court  may,  in  its  discretion,  adopt  such  mode  of  swearing  such 
person.     (Id.  104.) 

Kvery  pfsrson  believing  in  any  other  than  the  Christian  reli- 
gion, shall  Ih!  sworn  according  to  the  peculiar  ceremonies  of  his 
religion,  if  there  be  any  such  ceremonies,  instead  of  any  of  the 
modes  luMriin  before  described.     (Id.  105.) 

If,  after   hearing  tlu;  plaintiff's  witnesses,  the  Justice  is  of 


OF  TRIAL  AND  ITS  INCIDENTS.  ^^7 

opinion  that  the  facts  proved  do  not  constitute  a  cause  of  action, 
he  may,  without  hearing  the  defendant's  proof,  dismiss  the  case 
for  the  present,  with  costs  to  the  plaintiff,  and  enter  judgment 
to  that  effect  in  his  docket.  (12  J.  R.  299.  10  Wend.  519.) 
Such  judgment  will  not  prevent  a  second  action  for  the  same 
cause,  when  the  plaintiff  shall  be  satisfied  that  he  has  procured 
enough  additional  testimony  to  sustain  the  action. 

So  also,  if  the  plaintiff  is  apprehensive  that  his  proof  is  in- 
sufficient to  sustain  his  action,  he  may  withdraw  the  suit  at 
any  time  before  the  cause  is  submitted  to  the  Justice,  for  advise- 
ment, and  commence  again.     (II  J.  R.  457.) 

If  the  defendant  do  not  appear  before  the  Justice  to  answer, 
such  neglect  to  answer,  is  not  considered  an  admission  of  the 
plaintiff's  demand  ;  the  plaintiff  must  establish  his  case  by 
testimony,  in  the  same  manner  as  though  an  issue  had  been 
joined.    (2  R.  S.  339,  sec.  93.     Code,  sec.  64.) 

If  the  trial  be  by  jury,  it  is  to  bo  held  on  the  return  day  of 
the  venire,  on  which  day  the  persons  summoned  as  jurors 
present  themselves  in  court. 

Before  proceeding  to  draw  the  jury,  the  Justice  should  call 
over  the  list  of  the  jurors,  as  returned  by  the  constable.  He 
should  do  this,  for  the  purpose  of  ascertaining  which  of  the 
jurors  do,  and  which  do  not  appear.  He  should  then  enter  in 
his  docket  the  names  of  the  jurors  summoned  who  appear,  and 
also  the  names  of  those  who  do  not  appear. 

The  names  of  the  persons  so  returned,  and  who  shall  appear, 
must  be  respectively  written  on  several  and  distinct  pieces  of 
paper,  as  nearly  of  one  size  as  may  be,  and  the  constable,  in 
the  presence  of  the  Justice,  must  roll  up,  or  fold,  such  pieces  of 
paper  as  nearly  as  may  be  in  the  same  manner,  and  put  them 
together  in  a  bo.v,  or  some  convenient  thing.  (Id.  sec.  lOO.j 
The  Justice  must  then  dravv  out  six,  (or  such  number  as  the 
parties  may  have  agreed  upon,)  of  such  papers,  one  after 
another,  and  if  any  of  the  persons  whose  names  shall  be  so 
drawn,  shall  be  challenged  and  set  aside,  then  such  further 
number  must  be  drawn  as  will  make  up  the  number  required, 
after  all  legal  causes  of  challenge  allov/ed  by  the  Justice.  (Id, 
sec.  101.) 

The  persons  so  drawn,  appearing,  and  approved  as  indifferent, 
must  compose  the  jury  to  try  the  cause.     (Id.) 

If  a  sufficient  number  of  competent  jurors  are  not  drawn,  the 


168  OF  TRIAL  AND  ITS  INCIDENTS. 

Justice  may  supply  the  deficiency  by  directing  the  constable  to 
summon  any  of  the  bystanders,  or  others  who  may  be  compe- 
tent, and  against  whom  no  cause  of  challenge  shall  appear,  to 
act  as  jurors  in  the  cause.     (2  R.  S.  340,  sec.  102.) 

If  the  constable  do  not  return  the  venire,  or  if  a  full  jury  be 
not  obtained,  in  the  manner  above  directed,  the  Justice  must 
issue  a  new  venire  ;  (Id.  sec.  103  ;)  keeping  his  court  open,, 
holding  the  parties,  jurors,  &c.,  present  in  attendance,  until  the 
constable  shall  summon  from  the  town,  the  number  of  jurors 
wanted.  (2  Cai.  134.)  The  second  venire  is  to  be  in  the  same 
form  as  the  first,  excepting  that  it  commands  the  constable  to 
summon  just  the  number  required  to  complete  the  jury, 
and  upon  their  appearing,  they  are  simply  called  and  sworn, 
without  being  ballotted  for,  though  subject  to  the  same  chal- 
lenges as  regular  jurors.  If  the  second  venire  proves  insufficient, 
the  Justice  may  continue  to  issue  this  process,  until  there  is  a 
full  jury.     (Id.     7  J.  R.  198.     8  id.  460.) 

The  next  step  in  order,  is  the  swearing  of  the  jury.  Before 
the  jury  are  sworn,  however,  the  party  may  object  either  to  the 
jurors  collectively,  or  to  one  or  more  of  the  jurors  individually. 
This  objection  is  called  a  challenge. 

Challenges  are  of  two  kinds — to  the  array,  and  to  the  polls  ; 
and  each  of  these  is  subdivided  into  pri7icipal  challenges,  and 
challenges  to  the  favor.     (1  Cow.  436.) 

A  challenge  to  the  array,  is  an  objection  to  the  whole  panel 
of  jurors  returned  collectively  ;  not  for  any  defect  in  the  jurors 
themselves,  but  for  some  partiality  or  default  in  the  officer  who 
arrayed  the  panel.  This  is  either  a  jjrincipal  challenge,  or  a 
challenge  to  the  favor. 

Some  of  the  causes  of  principal  challenge  to  the  array,  are  the 
following  :  That  the  officer  who  makes  the  array  is  of  kindred 
10  cither  party  within  the  ninth  degree  ;  that  one  or  more  of  the 
jurors  is  returned  at  the  nomination  of  either  party;  that  an 
action  of  battery,  or  other  action  implying  malice,  is  depending 
between  the  officer  and  one  of  the  parties  ;  that  a  civil  action  is 
pending  at  the  suit  of  the  party  against  the  officer,  but  not  if  by 
tlie  ofTicer  against  the  party ;  that  the  officer  is  under  distress 
of  cither  party  ;  that  the  officer  is  counsel,  attorney,  officer,  or 
servant  of  either  i)arty,  or  is  an  arbitrator  in  the  same  matter, 
and  has  treated  thereof;  that  the  constable  who  served  the 
venire,  appears  as  the  attorney  of  the  party  demanding  a  jury, 


OF  TRIAL  AND  ITS  INCIDENTS.  169 

against  the  consent  of  the  other  party  ;  that  the  constable 
serving  the  venire,  does  not  reside  in  the  county  where  the 
cause  is  tried.  In  penal  actions  for  the  recovery  of  any  sum,  it 
is  not  good  cause  of  challenge  to  the  jurors  summoned,  or  offi- 
cers summoning  them,  that  such  juror  or  officer  is  liable  to  pay 
taxes  in  any  town  which  may  be  benefitted  by  the  recovery. 
(10  J.  R.  107.     13  id.  227.) 

The  causes  of  challenge  to  the  array  for  favor  are  such  as 
imply,  at  least,  a  probability  of  bias  or  partiahty  in  the  officer, 
but  do  not  amount  to  a  principal  challenge.  Thus,  that  the 
plaintiff  or  defendant  is  the  tenant  of  the  officer ;  or  that  the 
son  of  the  officer  has  married  the  daughter  of  the  plaintiff  or 
defendant,  or  the  like.     (1  Cow.  436.) 

A  challenge  to  the  polls  is  an  exception  to  one  or  more  of  the 
jurors  individually  ;  and  this  is  either  a  principal  challenge,  or 
challenge  to  the  favor. 

Some  of  the  causes  of  principal  challenge  to  the  polls  are  the 
following : — that  the  juror  has  not  the  legal  qualification  as  to 
residence,  age,  property,  &c., — but  a  matter  which  merely  ex- 
empts a  man  from  serving  on  a  jury,  is  not  cause  of  challenge — 
the  juror  only  can  avail  himself  of  the  exemption  ;  that  the 
juror  is  of  kin  to  either  party  within  the  ninth  degree  ;  that  there 
is  an  affinity  by  marriage  between  the  juror  and  one  of  the  par- 
ties, if  such  affinity  continue,  or  there  be  issue  of  the  marriage 
alive  ;  that  the  juror  has  before  given  a  verdict  in  the  same 
cause  or  upon  the  same  matter,  although  between  different  par- 
ties ;  that  he  has  been  arbitrator,  and  entered  upon  the  exami- 
nation of  the  same  matter,  having  been  selected  by  one  of  the 
parties  ;  that  an  action  implying  malice  or  displeasure  is  pend- 
ing between  the  juror  and  one  of  the  parties  ;  that  the  juror  has 
been  convicted  of  felony,  perjury,  conspiracy,  forgery,  (fcc,  or 
has  received  judgment  for  an  infamous  crime  ;  that  the  juror 
has  an  interest  in  the  suit.  When  the  county  sues  before  a  Jus- 
tice, the  electors  and  inhabitants  of  such  county  may  be  jurors. 
When  a  town  sues  or  is  interested  in  a  suit,  the  electors  and 
inhabitants  of  such  town  may  be  jurors.  It  is  a  good  ground 
of  principal  challenge  to  a  juror,  that  he  has  declared  his  opin- 
ion of  the  cause  beforehand  ;  but  where  a  juror  said  "  he  had  no 
personal  knowledge  of  the  matter  in  dispute,  but  that  if  the  re- 
ports of  the  neighbors  were  correct,  the  defendant  was  wrong  and 


170  OF  TRIAL  AND  ITS  INCIDENTS. 

the  plaintiff  right,"  this  was  held  no  objection  to  the  juror.  (II 
J.  R.  168.     6  id.  332.     1  Donio,  281.) 

Causes  of  challenge  to  the  polls  for  favor  are  where  there  is 
only  probabillti/,  from  circumstances,  that  the  juror  may  be 
biassed — as,  that  the  juror  is  the  fellow  servant  of  one  of  the 
parties ;  that  one  of  the  parties  has  been  lately  entertained  at 
the  juror's  house.  Jurors  must  be  above  all  exception,  as  _a  gen- 
eral rule  ;  and  the  application  of  this  rule  to  each  particular  case, 
where  the  partiality  is  not  apparent,  must  be  left  to  the  sound 
discretion  of  the  triors.     (18  J.  R.  121.) 

A  Justice  cannot,  on  his  own  motion,  challenge  and  set  aside 
the  whole  panel,  and  issue  a  new  venire.  He  may,  however, 
refuse  to  permit  a  drunken  man  to  serve  on  a  jury ;  and  if  nei- 
ther party  objects,  the  fact  of  the  intoxication  will  be  conceded. 
(2  Cow.  430.) 

Principal  challenges,  either  to  the  array  or  to  the  polls,  should 
be  tried  by  the  Justice.  If,  therefore,  either  party  make  a  prin- 
cipal challenge,  and  the  facts  alleged  as  the  grounds  of  the  chal- 
lenge be  conceded,  the  Justice  must  either  admit  or  reject  the 
juror,  or  quash  or  sustain  the  array.  If  the  facts  alleged  be  de- 
nied, witnesses  must  be  called  and  sworn  ;  and  in  cases  where 
the  cause  of  challenge  does  not  go  to  his  dishonor,  the  chal- 
lenged juror  may  be  a  witness.  The  rule  is,  that  the  challenged 
juror  may  bo  asked  such  questions  as  do  not  tend  to  his  infamy 
or  disgrace.     (16  J.  R.  180.     1  Cow.  435.     19  J.  R.  121.) 

Besides  the  usual  mode  of  challenges,  it  is  provided  that  upon 
the  trials  of  any  issue  or  issues  of  fact,  joined  in  a  civil  action, 
each  party  shall  be  entitled  peremptorily  to  challenge  two  of  the 
persons  drawn  as  jurors  for  such  trials.     (Laws  of  1847.) 

When  tlicrc  is  a  challenge,  either  to  the  array  or  polls /or 
favor,  the  mode  of  trying  the  question  is  this :  the  Justice  must 
select  two  indifferent  persons  for  triors  ;  and  in  case  the  chal- 
lenge Ije  to  the  polls,  and  two  persons  shall  have  been  sworn, 
they  must  be  triors  ;  but  jurors  should  not  be  selected  when  the 
challenge  is  to  the  array.  He  should  then  administer  to  the 
triors  an  oath. 


FOIIM    OF    OATH    ON    CIIALLKNGK    TO    THE    AllRAY    FOR    FAVOR. 

"You  shall  well  and   truly  try  the  issue  of  challenge  to  the 
array  of  jurors  in  the  suit,  wherein  John  Smith  is  plaintiff,  and 


OF  TRIAL  AND  ITS  INCIDENTS.  \jl 

Peter  Pray  defendant,  and  a  true  finding  make  according  to  evi- 
dence ;  so  help  you  God." 

OATH    ON    CriALLENGE    TO    THE    POLLS    FOR    FAVOK. 

"You  shall  well  and  truly  try  whether  John  Doc,  the  juror 
challenged,  stands  indifferent  between  John  Smith,  plaintiff,  and 
Peter  Pray,  defendant,  and  a  true  finding  make  according  to  evi- 
dence ;  so  help  you  God." 

Witnesses  arc  then  to  be  sworn  before  iho  triors,  to  wiiom  an 
oath  may  be  administered  in  this  form  : — • 

'•You  swear,  in  the  presonf;e  of  xllmighty  God,  (hat  you  will 
true  answers  make  to  such  questions  as  shall  be  put  to  you 
touching  the  chall'^nge  now  in  question." 

According  to  the  report  of  the  triors,  finding  the  matters  al- 
leged in  the  challenge  true  or  untrue,  the  Justice  must  decide, 
and,  as  the  case  may  be,  quash  or  affirm  tlie  panel,  or  reject  or 
retain  the  juror. 

After  a  full  jury  shall  have  been  obtained,  they  must  l>e 
sworn.  They  may  be  sworn  separately,  or  any  convenient 
number  of  them  at  the  same  time.  It  is  usual  to  swear  three  at 
a  time. 

FORM    OF    OATH    TO    BE    ADMINISTERED    TO    TOE    JURORS. 

"You  shall  well  and  truly  try  the  matter  in  difference,  be- 
tween John  Smith,  plaintiff,  and  Peter  Pray,  defendant ;  and, 
unless  discharged  by  the  Justice,  a  true  vovdict  give,  according 
to  evidence." 

After  the  jury  are  sworn,  the  Justice  should  coll  over  their 
names  ;  and  as  the  jurors  answer,  the  constable  should  count 
them,  for  the  purpose  of  ascertaining  that  the  jury  contains  the 
requisite  number  ;  and  the  Justice  should  then  ask  them  if  they 
have  all  been  sworn. 

After  the  jurors  are  sworn^  they  must  sit  together,  and  hear 
the  proofs  and  allegations  of  the  parties,  which  must  be  delivered 
publicly  in  their  presence. 


When  the  cause  is  ready  for  trial,  either  before  the  Justice 
alone  or  before  the  Justice  and  a  jury,  the  party  holding  the 
affirmative  of  the  matter  to  be  tried  must  open  and  state  his 


172  OF  TRIAL  AND  ITS  INCIDENTS. 

case,  and  call  his  witnesses  to  prove  it.  This  usually  devolves 
upon  the  plaintiff;  but  it  may,  in  certain  cases,  belong  to  the 
defendant.  As  if  the  defendant,  in  answer,  should  merely 
plead  payment  of  the  plaintiff's  demand,  on  which  issue  is 
joined,  this  plea  admits  the  matters  stated  in  the  complaint ;  and 
it  will  be  incumbent  on  the  defendant,  in  the  first  place,  to  prove 
the  payment.  He,  therefore,  will  hold  the  affirmative,  and  con- 
sequently must  open  the  case,  and  call  and  examine  his  wit- 
nesses.    (Edw.  Tr.  3d  ed.  90,  91.) 

The  party  who  opens  the  case  briefly  states  the  nature  of  the 
action,  the  names  of  the  parties,  the  substance  of  the  pleadings, 
the  points  on  which  issue  has  been  joined,  the  facts  and  circum- 
stances of  the  case,  and  the  substance  of  the  evidence  to  be  ad- 
duced, and  its  effect  in  proving  the  case  stated.  He  also  states 
the  matter  of  the  defence,  and  the  evidence  by  which  he  can 
disprove  it.     (1  Arch.  Pr.  191.) 

After  opening  the  case,  the  party  (who,  for  our  present  pur- 
pose, we  will  consider  the  plaintiff,)  proceeds  to  call  his  luitnesses. 
The  opposite  party  may  object  to  the  admission  of  a  witness,  on 
the  ground  of  incompetency,  and  the  Justice  must  decide  on  the 
validity  of  the  objection.  If  no  objection  be  made,  or  if  it  be 
made  and  overruled,  the  witness  is  then  sworn  by  the  Justice, 
and  the  plaintiff  proceeds  to  examine  him ;  after  which  he  may 
be  cross-examined  on  the  part  of  the  defendant.  If  any  new 
fact  arise  out  of  the  cross-examination,  the  witness  may  be  re- 
examined as  to  it,  by  the  party  who  first  examined  him.  In 
the  same  manner,  he  may  be  re-examined  when  necessary,  in 
order  to  explain  any  part  of  his  cross-examination.     (Id.  194.) 

The  plaintiff  also  produces  whatever  other  evidence  he  may 
think  material ;  to  the  admissibility  of  which,  the  opposite  party 
may  object,  and  the  Justice  must  decide  on  the  objection. 

After  the  plaintiff  has  gone  through  with  his  evidence,  exam- 
ined all  his  witnesses  and  rested  his  case,  the  defendant,  if  he 
be  of  opinion  that  the  plaiuliir  has  not  produced  sufficient  evi- 
dence to  entitle  liiiii  to  i^^o  to  the  Justice  or  jury,  may  move  for 
nonsuit.  And  if  tiio  Justice  be  of  such  opinion,  he  may  direct 
the  jiluinlifl"  to  bo  nonsuited. 

If  there  he  no  occasion  for  motion  of  nonsuit,  the  defendant 
proceeds  to  o|)(!n  and  state  the  matter  of  defence,  the  evidence, 
if  any,  which  he  will  adduce  in  support  of  it,  and  to  remark  on 
the  case  and  evidence  of  the  other  party.     He  then  produces 


OF  TRIAL  AND  ITS   INCIDENTS.  173 

his  witnesses  and  other  evidence,  to  the  admissibiUty  of  which, 
the  plaintiff  may  in  his  turn,  object.  After  the  examination  of 
the  defendant's  witnesses  is  conchided,  they  may  be  cross-exam- 
ined on  the  part  of  the  plaintiff,     (1  Arch.  Pr.  195.) 

The  examination  of  the  witnesses,  is  in  open  court,  in  the 
presence  of  the  parties  or  their  attornies,  and  before  the  Justice, 
or  Justice  and  jury,  who  have  thus  an  opportunity  of  observing 
the  understanding,  demeanor  and  inclination  of  the  witnesses. 
(1  Phil.  Ev.  168.) 

Leading  questions,  that  is,  such  as  instruct  a  witness  how  to 
answer  on  material  points,  are  not  allowed  on  the  examination 
in  chief;  for  to  direct  witnesses  in  their  evidence  would  only 
serve  to  strengthen  that  bias  which  they  are  generally  too  much 
disposed  to  feel  in  favor  of  the  party  who  calls  them.  The 
strictest  observance  of  this  rule,  is  highly  essential.  (Id.  Cow. 
&  Hill's  Notes,  504,  723.) 

duestions  which  are  intended  merely  as  introductory,  are  not 
leading.  Thus  if  a  witness  called  to  prove  a  partnership,  is  not 
able  at  the  moment,  to  specify  the  several  names  of  the  partners, 
a  number  of  names  containing  those  of  the  partners  among 
others,  may  be  suggested  to  the  witness,  for  the  assistance  of 
his  memory.     (1  Phil.  Ev.  269.) 

If,  however,  the  Justice  finds,  as  the  examination  progresses, 
that  the  witness  is  backward  or  reluctant  in  the  answers  he 
gives  ;  in  a  word  that  he  is  what  is  called  an  unwilling  witness 
he  may  suffer  the  party  to  change  his  ground,  and  put  leading 
questions,  and  indeed  indulge  all  the  latitude  of  a  cross-exam- 
ination.    (Id.) 

In  cross-examinations,  the  object  of  which  is  to  sift  evidence, 
and  try  the  credibihty  of  witnesses,  great  latitude  is  allowed  in 
the  mode  of  putting  questions.  Leading  questions  may  be 
asked,  and  every  thing  inquired  into,  which  has  the  least  con- 
nection with  the  points  in  dispute.  The  rule  however,  is  still 
subject  to  limitations.  A  witness  cannot  be  cross-examined  as 
to  any  fact,  which,  if  admitted,  would  be  wholly  irrelevant.  If 
it  were  permitted,  it  would  often  produce  great  confusion  and 
embarrassment,  and  the  simplest  issue  might  thus  branch  off 
into  a  variety  of  collateral  issues  perfectly  immaterial.  (Ibid. 
273.) 

A  party  will  not  be  entitled  to  the  benefit  of  the  testimony  of 
a  witness  who  dies  after  he  has  been  examined,  and  before  the 


X74  OF  TRIAL  AND  ITS  INCIDENTS. 

opposite  party  has  had  an  opportunity  to  avail  himself  of  a 
cross-examination.     (25  Wend.  R.  G51.) 

If  a  witness  has  once  been  examined  by  a  party,  the  power 
of  cross  examination  continues  in  every  stage  of  the  cause ;  so 
that  the  other  party  may  call  the  same  witness  to  prove  his 
case,  and  in  examining  him,  may  ask  leading-  questions.  (Cow. 
&  Hill's  Notes,  508,  726.) 

After  a  witness  has  been  cross-examined,  the  party  who  pro- 
duced him  may  deem  it  necessary,  in  order  to  come  at  the  truth 
of  the  case,  to  examine  him  as  to  new  matter,  and  after  that 
there  may  be  a  second  cross-examination.  The  Justice  may,  in 
his  discretion,  permit  a  witness  to  be  examined  over  and  over 
again,  at  any  time  during  the  trial.  But  he  should  take  care 
and  exercise  this  discretion  so  as  not  to  suffer  any  advantage 
to  be  taken  by  trick,  or  artifice.  If  the  plaintiff  should  declare 
tliat  he  had  finished  his  testimony,  in  consequence  of  which 
the  defendant  should  dismiss  some  of  his  witnesses,  and  then 
the  plaintiff  should  offer  to  produce  new  testimony  which  might 
perhaps  have  been  contradicted  by  the  witnesses  who  were  dis- 
missed, the  Justice  ought  not  to  suffer  him  to  avail  himself  of 
such  unfair  conduct.     (2  John,  Cas.  319.) 

A  witness  cannot  be  compelled  to  answer  any  question  which 
will  expose  or  tend  to  expose  him,  to  a  charge  legally  criminal, 
though  the  consequence  might  be  only  a  pecuniary  penalty.  If, 
therefore,  ihe  Justice  sees  that  by  any  possibility,  the  answer 
may  form  the  least  link  in  the  chain  of  proof  to  convict  a  wit- 
ness of  a  criminal  offence,  he  ought  not  to  compel  him  to  an- 
swer. The  exemption,  however,  is  the  privilege  of  the  witness 
only,  and  he  may  waive  it,  if  he  think  proper,  and  answer  the 
question.     (3  Taunt.  414.     1  Phil.  Ev.  276.) 

The  above  mentioned  privilege  docs  not  extend  to  a  question, 
the  answer  to  which  may  degrade  a  witness'  moral  character 
merely,  and  not  sulycct  him  to  diny  legal  penally.  Nor  can  the 
witness  decline  answering,  merely  because  the  answer  may 
sul)jr;f't  him  to  a  civil  suit,  unless  he  be  a  party  in  interest.  (1 
Phil.  Ev.  278,  279.) 

A  witness  can  depose  only  to  such  facts  as  are  within  his 
own  recollection.  Hut  to  assist  his  memory,  he  may  use  a 
written  entry  in  a  hooic,  or  a  memorandum,  or  the  copy  of  a 
rneniorandniM  :  such  (;titry  or  memorandum,  having  been  made 
at  the  time  the  fact  occurred,  or  recently  afterwards  ;  and  if 


OF  TRIAL  AND  ITS  INCIDENTS.  175 

after  looking  at  the  memorandum,  he  can  positively  swear  to 
the  truth  of  the  fact  there  stated,  such  evidence  will  be  suffici- 
ent. If  the  witness  cannot  from  recollection,  speak  to  the  fact, 
except  from  finding  it  in  the  paper,  his  testimony  goes  for  noth- 
ing. If  the  paper  is  an  original  entry  or  memorandum,  made 
by  the  witness  at  or  about  the  time,  for  the  purpose  of  preserv- 
ing the  memory  of  the  transaction,  and  the  witness  will  testify 
that  he  believes  it  to  be  correct,  though  he  has  forgotten  the 
transaction  itself,  the  paper  may  be  read  in  evidence.  (1  Phil. 
Ev.  289.     Cow.  &  Hill's  Notes,  750.) 

The  opinion  of  a  witness,  is  not  in  general  evidence  ;  the  wit- 
ness must  speak  to  facts.  (1  Phil.  Ev.  290.)  But  on  questions 
of  science  or  trade,  or  others  of  the  same  kind,  persons  of  skill 
may  speak  not  only  as  to  facts,  but  are  allowed  also  to  give  their 
opinions  in  evidence.  (Id.)  The  opinion  of  medical  men  is  ev- 
idence as  to  the  state  of  a  patient  whom  they  have  seen.  Even 
in  cases  where  they  have  not  themselves  seen  the  patient,  but 
have  heard  the  symptoms  and  particulars  of  his  state,  detailed 
by  other  witnesses  at  the  trial,  their  opinion  on  the  nature  of 
such  symptoms,  has  been  properly  admitted.  Thus,  on  a  ques- 
tion of  sanity,  medical  men  have  been  permitted  to  form  their 
judgment  upon  the  representations  which  witnesses  at  the  trial, 
have  given  of  the  manner  and  general  appearance  exhibited  by 
the  patient.  So  in  prosecuting  for  murder,  they  have  been  al- 
lowed to  state  their  opinion  whether  the  wounds  described  by 
witnesses,  were  likely  to  be  the  cause  of  death. 

Evidence  of  general  character  is  also  founded  on  opinion. 
And  where  a  witness  cannot  recollect  a  precise  conversation 
about  which  he  is  testifying,  he  may  give  his  impression  as  to 
its  substance.     (Id.  and  Cow.  &  Hill's  Notes,  749,  757  to  763.) 

Of  Imjyeaching    Witnesses. 

To  impeach  the  credit  of  a  witness,  the  opposite  party  may 
disprove  the  facts  stated  by  him,  or  may  examine  witnesses  as 
to  his  general  character.  A  witness  called  to  impeach  or  sup- 
port the  general  character  of  another  is  not  to  speak  of  his  pri- 
vate opinion,  or  of  particular  facts  in  his  own  knowledge  ;  but 
he  must  speak  of  the  common  reputation  among  his  neighbors 
and  acquaintance.  The  onl)''  proper  questions  to  be  put  to  him 
are, — whether  he  knows  the  general  character  of  the   witness 


176  OF  TRIAL  AND  ITS  INCIDENTS. 

intended  to  be  impeached  in  point  of  truth,  among  his  neigh- 
bors ?  and  what  that  character  is  ?  whether  good  or  bad  ?  The 
witness  may  be  inquired  of,  as  to  the  means  and  opportunity  he 
has  of  Icnowing  the  cliaracter  of  the  witness  impeached  ;  as  how 
long  he  lias  Icnown  him  ;  how  near  he  lives  to  him  ;  and  whether 
his  character  has  been  the  subject  of  general  conversation.  But 
his  testimony  must  be  founded  on  the  common  repute  and  un- 
derstanding of  his  acquaintance  ;  and  the  reason  given  is,  that 
every  man  may  be  supposed  capable  of  supporting  his  general 
character,  but  not  to  be  prepared  to  answer  particular  facts,  with- 
out notice.  (1  Phil.  Ev.  291,  292,  393.  Cow.  &  Hill's  Notes, 
763.     19  Wend.  569  and  579.     Swift's  Ev.  143.) 

The  regular  mode  of  examining  into  general  character,  is  to 
inquire  of  the  witnesses  whether  they  have  the  means  of  knowing 
the  witness'  former  general  character,  and  whether,  from  such 
knowledge,  they  would  believe  him  under  oath.  In  answer  to  such 
evidence  agamst  character,  the  opposite  party  may  cross-exam- 
ine the  witnesses  as  to  their  means  of  knowledge,  and  the  grounds 
of  their  opinion  ;  or  may  attack  their  general  character,  and  by 
parol  evidence  support  the  character  of  his  own  witness.     (Id.) 

The  examination  is  as  above  stated  in  general,  or  it  may  be 
narrowed  to  the  general  character  for  truth  and  veracity.  (Cow. 
&  Hill's  Notes,  7Q3.) 

When  a  witness  is  sought  to  be  impeached  on  the  ground  of 
his  bad  character,  and  the  persons  called  for  that  purpose  testify 
that  they  are  acquainted  with  his  ge7ieral  character^  they  may 
be  asked  whether,  from  such  general  character,  they  would  be- 
lieve the  witness  on  his  oath  ;  and  this,  though  they  expressly 
disclaim  all  knowledge  of  the  witness'  character  for  truth  and 
veracity.     (3  Hill,  178.) 

The  verbal  declarations  or  statements  of  a  witness,  made  on 
some  former  occasion  to  a  third  person,  are  frequently  given  in 
evidence  by  the  party  against  whom  the  witness  appears,  witli 
the  view  of  showing  that  his  several  accounts  of  the  particular 
transaction  on  which  he  has  been  examined,  are  inconsistent 
and  contradictory.  A  hotter  written  by  him,  or  a  deposition 
signed  by  him,  may  also  be  used  as  evidence  to  contradict  his 
testimony;  the  letter  or  deposition  being  first  regularly  proved. 
This  evidence  of  contradictory  statements,  is  produced  for  the 
purpose  of  exciting  doubt  and  distrust  against  his  testimony  as  to 
the  particular  transaction  in  which  the  discrepancy  arises,  or  per- 


OF  TRIAL  AND  ITS  INCIDENTS.  177 

haps  to  raise  suspicion  as  to  the  truth  of  his  testimony  in  gen- 
eral. Before  such  testimony  can  be  regularly  admitted  on  behalf 
of  the  party,  it  will  be  necessary,  in  the  first  instance,  to  prepare 
the  way  for  its  admission  by  interrogating  the  witness  particu- 
larly, concerning  the  alleged  statement.  Then,  if  effectually 
impeached,  he  may  be  again  called  to  explain  why  he  made  it. 
(1  Phil.  Ev.  293.) 

If  an  attesting  witness  to  a  will  or  deed,  impeach  its  validity, 
on  the  ground  of  fraud,  and  accuse  other  subscribing  witnesses, 
"who  are  dead,  of  being  accomplices  in  the  fraud,  the  only  mode 
left  of  doing  justice  to  the  persons  impeached,  is  by  inquiring  into 
their  general  character  ;  though  where  witnesses  merely  contra- 
dict each  other  as  to  facts,  and  no  fraud  is  imputed,  evidence  of 
general  character  is  not  admissible  in  support  of  either.  (18 
Wend.  569.  1  Phil.  Ev.  293  to  308.  Cow.  &  Hill's  Notes,  771 
to  779.     8  Carr.  &  Payne,  726.) 

A  party  will  not  be  allowed  to  discredit  his  own  witness,  by 
proving  him  to  be  of  such  a  general  bad  character  as  to  render  him 
unworthy  of  credit.  (1  Phil.  Ev.  308  to  311.)  But  if  a  witness 
state  facts  against  the  interest  of  the  party  who  called  him,  an- 
other witness  may  be  called  to  disprove  those  facts.  Thus, 
where  the  defendant's  servant,  who  had  been  employed  to  sell 
a  horse,  had  warranted  him  sound,  and  the  servant  swore,  on 
being  called  by  the  plaintiff,  that  he  had  not  given  any  warranty, 
it  was  permitted  the  plaintiff  to  call  another  witness  to  prove 
that  at  the  time  of  the  sale  the  servant  had  expressly  warranted 
its  soundness.     (Id.) 

Where  the  party  calls  an  attesting  witness,  who  denies  his 
attestation,  or  a  witness  who  has  deceived  the  party  by  making 
favorable  statements  to  him,  in  consequence  of  which  he  is 
called,  but  contradicts,  on  oath,  what  he  stated  before,  he  may 
be  impeached  by  showing  such  former  statements,  or  by  show- 
ing his  general  bad  character,  or  other  matter  going  to  impair 
his  credibility,  the  same  as  if  he  had  been  called  by  the  oppo- 
site party,  and  he  may  also  show  the  signature  of  the  witness 
to  be  genuine,  by  those  acquainted  with  his  handwriting.     (Id.) 

As  a  general  rule,  a  party  cannot  give  evidence  of  the  good 
character  of  his  witness,  until  it  has  been  attacked.  If,  however, 
the  opposite  party  should  draw  from  the  witness,  on  cross-exam- 
ination, extrinsic  facts  going  to  impeach  his  general  character, 

12 


178  OF  TRIAL  AND  ITS  INCIDENTS. 

e\ddence  of  good  character  may  be  given  in  reply.     (3  Hill,  309. 
24  Wend.  354.     Cow.  &  Hill's  Notes,  779  to  782.) 

After  an  equal  number  of  witnesses  have  been  sworn  on  each 
side,  impeaching  and  supporting  character,  it  is  discretionary 
with  the  Justice  whether  more  shall  be  allowed  to  the  same 
point.     (Id.) 

Of  the  Justice's  Discretion  in  Admitting  or  Rejecting 
Testimony. 

There  are  several  questions  of  fact,  in  the  course  of  a  trial, 
arising  on  collateral  issues,  determinable  by  the  Justice,  upon 
which  his  decision  is  absolute.  Among  them,  are  the  questions 
whether  an  infant  has  a  sufficient  sense  of  moral  obligation  to 
warrant  his  being  permitted  to  testify ;  whether  an  agency  is 
shown  so  as  to  let  in  the  acts  and  declarations  of  the  agent,  as 
evidence  against  his  principal ;  whether  a  person  oifered  as  a 
witness  is  a  lunatic  or  intoxicated  ;  whether  the  loss  or  destruc- 
tion of  a  paper  is  sufllcicntly  proved,  to  warrant  the  introduction 
of  oral  evidence  concerning  its  contents  ;  or  whether  diligent  and 
unavailing  search  has  been  made  for  a  subscribing  witness,  so 
as  to  warrant  evidence  of  an  inferior  degree. 

Another  question  depending  upon  the  state  of  the  pleadings, 
is,  which  party  shall  begin  :  in  other  words,  which  holds  the 
affirmative,  and  which  the  negative  of  the  issue,  on  the  trial. 
This,  in  practice,  not  only  governs 'the  priority  of  proofs  as  be- 
tween the  parties,  but  the  order  of  opening  the  evidence  and 
summing  it  up.  It  is,  however,  a  matter  so  much  in  the  Jus- 
tice's discretion,  that  should  he  mistake,  and  no  prejudice  to  the 
merits  appear  to  have  followed,  the  judgment  would  not.  for  that 
reason,  be  reversed. 

Where  a  case  or  defence  is  to  be  made  out,  by  a  scries  of 
proofs,  the  Justice  has  a  discretion  as  to  the  order  in  which  they 
shall  be  introduced,  l-'or  instance,  a  defendant  sued  for  wrong- 
fully taking  and  detaining  goods,  proposes  to  make  out  that  he 
took  (lif  goods  as  a  constable  from  a  vendor  of  the  plaintiff,  who 
purchased  them  with  intent  to  defraud  creditors.  Which  is  to 
be  proved  fir.<l,  the  judgment,  execution,  or  fraud,  is  in  the  Jus- 
tice's discretion  ;  though,  in  the  end,  to  complete  the  defence, 
they  nuisl  all  be  shown.     • 

When  a  witness  is  asked,  and  without  objection  answers,  to  a 


OF  TRIAL  AND  ITS  INCIDENTS.  179 

fact  not  relevant,  the  Justice  may,  or  may  not,  hear  testimony 
in  reply.  So  whether  the  witnesses,  or  any  of  them,  shall  retire, 
on  the  party's  suggestion  that  he  wishes  to  avoid  a  concerted 
story ;  and  whether  the  wilful  return  of  one  ordered  to  retire, 
shall  be  a  cause  of  rejection.  And  when  a  fact  is  fully  proved, 
the  Justice  may,  or  may  not,  hear  additional  evidence  to  it.  He 
has  also  a  discretion  to  stop  the  idle  multiplication  of  witnesses 
to  any  other  fact.  Thus,  in  impeaching  a  witness  for  bad  char- 
acter, he  may  stop  the  introduction  of  witnesses  for  or  against 
his  character,  when  either  party,  or  both  parties,  have  had  what 
he  believes  a  full  and  fair  opportunity  of  impeaching  or  sustain- 
ing witnesses.  He  is  not  required  to  waste  his  time  in  hearing 
more  witnesses,  either  when  the  question  appears  to  have  taken  a 
decisive  turn,  or  been  exhausted,  or  when  they  appear  to  be 
called  and  examined  at  random  without  answering  in  favor  of 
the  party  calling  them.  He  may,  also,  in  general,  require  the 
party  offering  a  witness  to  state  what  he  intends  to  prove  by 
him  ;  and  moreover,  to  state  how  the  evidence  is  material,  es- 
pecially when  its  materiality  is  not  obvious.  So,  if  he  after- 
wards discover  it  to  be  immaterial,  the  Justice  may  reject  it. 
The  due  exercise  of  this  power,  becomes  highly  important,  when 
the  cause  is  tried  by  a  jury.  It  is  the  duty  of  the  Justice,  to 
withhold  all  irrelevant  testimony  from  them,  so  far  as  may  be 
in  his  power.  A  party  may  state  that  the  proposed  evidence 
will  be  followed  by  proof  giving  it  a  character  or  bearing  whicii 
it  does  not  appear  to  have,  when  standing  naked  or  insulated. 
In  such  case,  if  the  Justice  do  not  choose  to  hear  the  ulterior 
proof  first,  he  must,  in  the  nature  of  things,  receive  the  offered 
proof  provisionally,  and  direct  the  jury  to  disregard  it  if  finally 
the  chain  is  left  incomplete. 

It  is  a  matter  of  discretion  with  the  Justice,  whether  a  party 
calling  a  witness  shall  be  permitted  to  ply  him  with  leading 
questions.  The  party  may  be  permitted  to  do  so,  if  the  Justice  is 
satisfied,  from  his  manner  or  otherwise,  that  he  is  an  unwilling 
witness.  Whether,  also,  a  witness  who  has  been  examined  in 
chief,  cross-examined,  and  re-examined,  shall  be  farther  inteiTO- 
gated,  or  whether,  after  leaving  the  stand,  he  shall  be  recalled. 
Or,  after  all  the  proofs  are  regularly  gone  through  with,  whether 
a  witness  or  witnesses  shall  be  further  examined,  and  to  what 
extent ;  or  whether  any  more  proof,  written  or  oral,  shall  be  re- 
ceived.    In  strictness,  the  party  calling  a  witness  is  bound  to 


jgQ  OF  TRIAL  AND  ITS  INCIDENTS. 

finish  his  questions  on  the  examination  in  chief;  and  the  defen- 
dant must  do  the  same  thing  on  cross-examination.  The  wit- 
ness can  then  be  re-examined  only  to  cut  down  or  explain  mat- 
ter wliich  comes  out  on  his  cross-examination.  So,  taking  the 
proof  in  the  aggregate,  the  plaintiff  or  party  beginning,  must  ad- 
duce all  his  proofs  ;  then,  the  party  holding  the  defensive  or  neg- 
ative side  ;  and  then  the  first  may  adduce  evidence  to  rebut, 
qualify,  or  explain  away,  the  matter  proved  against  him.  Be- 
yond this,  the  Justice  may  or  may  not  allow  the  parties  to  go, 
in  his  discretion.  It  is  proper  to  allow  it,  if  he  think  any  thing 
material  has  been  inadvertently  omitted.  But  the  partie^'can- 
not,  in  their  discretion,  go  back  and  renew  their  controversy  on 
a  new  state  of  facts.  And  the  Justice  may  or  may  not  allow 
questions  once  put  and  answered  to  be  repeated. 

Though  it  is  the  duty  of  a  Justice  to  acquit  or  direct  the  ac- 
quittal of  one  among  several  defendants  sued  for  a  joint  wrong, 
there  being  no  proof  against  him,  the  other  defendants  desiring 
to  call  him  as  a  witness  ;  yet  it  is  matter  of  discretion  whether 
this  shall  be  done  at  the  close  of  the  plaintifl's  proof,  or  not  till 
the  closing  of  all  the  proofs  in  the  cause,  or  at  some  intermedi- 
ate stage. 

Of  Weighing  the  Testimony  of  Witnesses. 

Where  there  is  no  contradiction  in  the  testimony  of  witnesses 
to  the  same  fact,  and  they  do  not  testify  to  facts  opposed  to  each 
other,  there  is  very  little  difiiculty  in  deciding  whether  the  evi- 
dence is  sufllcient  to  prove  the  fact  in  dispute.  But  when  the 
witnesses  contradict  each  other,  in  their  testimony  as  to  the  same 
fact,  or  testify  to  opposing  facts  and  circumstances,  it  becomes 
necessary  to  make  application  of  certain  general  rules  wliich 
have  been  adopted  in  guiding  the  mind  to  a  true  estimate  of  evi- 
dence. 

When  there  is  an  apparent  inconsistency  or  contradiction  in 
the  testimony,  it  is  a  general  rule  that  such  interpretation  shall 
be  put  upon  it  as  to  make  it  agree,  if  possible :  for  the  law  will 
presume  that  every  body  swears  the  truth,  and  that  no  man  will 
be  guilty  of  perjury.  If  such  construction  can  be  given  as  will 
reconcile  the  testimony,  it  must  be  preferred  to  a  construction 
that  will  make  it  contradictory.  But  if  the  testimony  of  wit- 
nesses be  so  contradictory  that  it  cannot  be  reconciled — '.\s.  wbora 


OF  TRIAL  AND  ITS  INCIDENTS.  IgJ 

one  testifies  in  the  affirmative,  and  the  other  in  the  negative,  the 
affirmative  witness  is  to  be  believed  ;  for  it  is  a  general  principle 
that  one  affirmative  witness  outweighs  several  negative.  The 
negative  witness  can  only  swear  that  he  does  not  know  the  fact, 
while  the  affirmative  witness  swears  directly  to  his  knowledge 
of  it.  Consequently,  the  fact  which  the  affirmative  witness 
swears  to  be  true,  may  be  so,  while  the  other  knows  nothing  of 
it ;  and,  of  course,  both  swear  to  the  truth,  according  to  their 
knowledge.  In  this  way,  the  testimony  is  easily  reconciled. 
Two  persons  being  at  the  same  place,  one  swears  that  a  parti- 
cular fact  happened,  and  the  other  that  it  did  not ;  this  makes 
the  contradiction  more  express  than  if  the  latter  said  ho  did  not 
see  it.  For  it  is  possible  that  their  situation  may  be  such  that 
a  witness  may  know  with  as  much  certainty  that  the  fact  did 
not  happen,  as  it  could  be  known  that  it  did.  But  even  in  such 
cases,  where  the  credit  of  the  witnesses  is  equal,  the  affirmative 
witness  is  to  be  believed  ;  for  the  fact  may  have  happened,  and 
the  affirmative  witness  may  have  not  seen  it,  or  may  have  forgot- 
ten it.  Tlie  affirmative  witness  could  not  see  and  remember  a 
fact  that  did  not  happen. 

It  is  a  general  remark  that  a  negative  cannot  be  proved.  But 
when  the  question  arises  whether  a  witness  did  a  particular 
thing,  as  paying  a  sum  of  money,  his  testifying  that  he  did  not 
do  it  would  be  proof  that  the  fact  did  not  happen.  But  where 
witnesses  swear  affirmatively  to  a  fact,  it  will  not  generally  be 
sufficient  to  disprove  it,  to  call  witnesses  who  merely  deny  it ; 
it  must  be  done  by  proving  other  facts,  contradictory  to,  or  incon- 
sistent with  it,  and  which  show  that  such  fact  could  not  have 
existed. 

Where  witnesses  swear  to  facts  directly  repugnant  and  con- 
tradictory to  each  other,  their  testimony  cannot  be  reconciled, 
and  we  must  then  determine  which  is  deserving  of  credit. 
Thus,  where  a  witness  swears  that  he  saw  a  person  com- 
mit a  trespass  at  a  particular  place  and  time,  and  another 
swears  that  he  saw  the  same  person  at  the  same  time  in  a 
distant  place,  the  testimony  of  both  is  affirmative,  contra- 
dictory, and  irreconcilable.  In  such  cases,  where  the  number 
of  witnesses  adduced  by  each  party  is  different,  and  their  cha- 
racters and  means  of  knowledge  different,  the  greater  number 
of  witnesses  must  be  relied  on,  in  preference  to  the  smaller. 
When  the  number  of  witnesses  is  equal  or  unequal  on  both 


182  OF  TRIAL  AND  ITS  INCIDENTS 

sides,  if  their  characters  and  means  of  knowledge  are  different, 
these  circumstances  must  be  taken  into  consideration  in  deci- 
ding upon  the  preponderance  of  the  testimony. 

The  general  character  of  witnesses  in  point  of  truth  must  be 
taken  into  consideration,  and  other  witnesses  maybe  called  upon 
either  to  impeach  or  support  their  characters.  Where  the  cha- 
racter of  a  witness  is  proved,  by  the  testimony  of  persons  of  cre- 
dit, to  be  that  of  a  man  of  truth,  his  testimony  acquires  strength 
and  confirmation.  Where,  however,  witnesses  of  repute  testify 
that  the  general  character  of  the  witness  is  not  good,  and  that 
his  testimony  is  not  to  be  relied  upon,  the  jury  ought  to  disre- 
gard it.  But  the  witnesses  who  are  called  to  support  or  impeach 
character,  ought  to  be  of  fair  and  unblemished  reputations  ;  and 
the  effect  of  their  testimony  will  be  in  proportion  to  the  good- 
ness of  their  character ;  for  they  may  be  impeached  as  well  as 
others. 

The  credit  of  witnesses  will  in  some  degree  be  affected  by 
their  relationship  to  the  party,  and  their  connection  with  them. 
By  the  Roman  or  civil  law,  father  and  son  could  not  be  wit- 
nesses for  each  other,  and  distant  relations  could  not  be  com- 
pelled to  testify  against  those  to  whom  they  were  allied.  By 
our  law,  no  relationship  excludes  from  testifying  but  that  of  hus- 
band and  wife  ;  but  the  relationship  is  always  considered  as  a 
matter  going  to  the  credit  of  the  witness.  Such  is  the  frailty  oi 
the  human  mind,  that  witnesses  of  integrity  who  really  wish  to 
speak  the  truth  are  imperceptibly  influenced  by  the  natural  bias 
to  favor  their  friends.  But  it  is  often  necessary  to  call  upon  wit- 
nesses from  the  flimily  to  prove  facts,  or  they  could  never  be 
proved  ;  and  though  they  are  admitted,  it  ought  to  be  with  due 
caution  and  allowance.  In  all  cases  where  other  witnesses  can 
be  obtained  th:tn  those  of  the  family,  it  ought  to  be  done  ;  and 
where  there  is  a  dirferencc  between  the  testimony  of  relatives  to 
the  party  and  strangers,  the  greater  credit  is  due  to  the  latter. 

The  total  indifference  of  a  witness  to  the  parties  and  their 
cause,  adds  much  to  the  weight  of  his  testimony.  If,  on  the 
other  hand,  tin;  witix^ss  has  had  a  personal  controversy  with 
cither  of  tbe  i)arli(;s,  there  is  danger  that  it  may  influence  his 
mind  to  ti^stil'y  strongly  against  him.  It  is,  thereibre,  always 
permitted  to  iinpiin!  of  the  witness  wlicthor  he  has  not  had 
controversy  wilh  the  parly,  or  to  prove  it  by  otlieis.  Tiie  par- 
ticulars of  the  controveisy  cannot  be  inquired  into  ;  it  can  only 


OF  TRIAL  AND  ITS  INCIDENTS.  X83 

be  shown  there  has  been  one.  Then  the  credit  due  to  his  testi- 
mony, when  compared  with  others,  may  be  judged  of;  and  thus 
the  weight  of  his  testimony  may  be  greatly  lessened. 

An  interest  in  the  same  question  of  fact  does  not  exclude.  It 
may,  therefore,  happen  that  by  the  rules  of  law  a  witness  is  ad- 
mitted who  has  all  the  feelings  and  prejudices  of  a  party,  and 
who  has,  perhaps,  a  case  to  be  tried  the  next  hour  in  which  pre- 
cisely the  same  fact  is  involved.  Though  the  verdict  caimot  be 
given  in  evidence  for  him,  yet  he  is  under  a  strong  bias  to  prove 
the  facts  on  which  his  case  depends.  The  Justice  should 
always  look  with  a  jealous  eye  upon  a  witness  thus  circum- 
stanced, and  his  testimony  should  have  strong  internal  evidence 
to  support  it,  or  it  should  be  corroborated  by  other  witnesses. 
When  the  interest  of  the  witness  is  direct — as  a  cause  depend- 
ing in  which  it  is  involved,  it  may  be  a  strong  ground  to  lessen 
his  credit.  If,  however,  his  interest  is  remote,  collateral  or  con- 
tingent, of  trifling  amount,  and  it  is  uncertain  whether  a  suit 
will  ever  be  brought,  it  should  have  little  weight. 

The  means  of  information  of  witnesses  will  have  great  weight 
in  confirming  their  testimony.  For  when  a  witness  has  had 
the  best  means  of  knowledge,  and  can  give  a  good  account  and 
reason  for  his  recollection,  and  can  point  out  the  circumstances 
that  usually  and  naturally  attend  the  transaction,  he  is  to  be 
credited  in  preference  to  one  who  cannot  explain  the  means  of 
his  knowledge,  or  the  ground  of  his  recollection,  but  testifies 
directly  to  the  material  point,  without  being  able  to  detail  the 
usual  and  probable  attendant  circumstances.  A  witness,  how- 
ever, is  to  be  distrusted  in  certain  cases,  if  he  is  more  minute 
and  particular  in  his  recollection  than  is  probable.  For  if  the 
transaction  is  of  old  date,  and  the  witness  relates  trivial  circvun- 
stances  which  would  not  probably  be  remembered  so  long  a 
time,  it  is  to  be  presumed  that  he  has  fabricated  the  story. 

The  capacity  and  discernment  of  witnesses  ought  not  to  pass 
unnoticed.  The  apparent  clearness  or  dullness  of  their  under- 
standing may  affect  the  credit  of  their  testimony. 

The  probability  of  the  story,  according  to  the  nature  of  things, 
is  much  to  be  regarded  in  weighing  testimony.  When  a  wit- 
ness relates  facts  which  are  very  improbable  in  their  nature,  or 
attended  with  improbable  circumstances,  he  is  to  be  suspected ; 
and  it  requires  more  evidence  to  convince  the  mind  of  such 


184  OF  TRIAL  AND  ITS  INCIDENTS. 

factSj  than  where  they  are  according  to  the  ordinary  course  of 
things. 

As  the  confession  of  a  party  is  usually  made  when  none  are 
present  but  the  witness  and  the  party,  it  should  be  received  with 
great  caution  in  all  cases  where,  from  the  circumstances  of  the 
witness,  there  is  reason  to  believe  he  acted  with  design.  Such 
witness,  to  entitle  himself  to  credit,  should  be  able  to  give  a 
reasonable  and  probable  account  of  the  manner  in  which  the 
confession  was  obtained.  And  where  it  appears  that  the  wit- 
ness was  employed  by  one  party  to  obtain  such  acknowledg- 
ment from  the  other  party,  with  a  view  to  use  it  in  evidence, 
suspicion  will  be  doubly  strong.  It  is  so  well  known  that  an 
artful  man  may  take  great  advantages  of  an  unsuspecting  one, 
and  it  is  so  easy  to  torture  the  meaning  of  another,  and  distort 
the  slightest  cu'cumstance  into  testimony  against  him,  such  evi- 
dence should,  of  itself,  have  little  weight,  and  ought  to  be  cor- 
loborated  by  the  most  convincing  circumstances  to  make  it  be- 
lieved. When,  however,  a  confession  is  underslandingly  made, 
in  a  manner  properly  accounted  for,  there  is  no  question  but  that 
it  is  the  best  evidence. 

The  manner  in  which  a  witness  relates  his  story,  will  con- 
tribute much  to  impress  the  mind  with  its  truth.  There  is  a 
peculiar  manner  of  telling  a  story  which  is  calculated  to  make 
people  believe  it — a  certain  artless  and  unatFected  air,  a  plain 
and  concise  manner,  which  impress  one  with  irresistible  con- 
viction of  truth.  When  a  witness  appears  to  be  impartial, 
candid,  and  dispassionate,  and  has  a  clear  understanding  of  the 
subject,  he  will  be  credited.  There  are,  however,  many  instan- 
ces in  which  honest,  ignorant  people  testify  in  such  a  confused 
inaccurate  and  blundering  manner,  that  their  story  makes  little 
impression.  Where  a  witness  is  passionate  and  vehement,  ex- 
presses himself  with  unusual  confidence,  and  makes  solemn 
protestations  of  the  truth  of  what  he  says,  he  is  to  be  distrusted; 
for  a  person  conscious  that  he  is  speaking  the  truth,  is  seldom 
boisterous.  Resentment  against  one  party,  and  partiality  for 
the  oihfM-,  when  pr(!v;i.lent,  are  apt  to  show  themselves  in  the 
voic(!  and  counloiunce  of  a  witness,  and  when  they  do,  they  are 
circumstances  which  nujst  impress  suspicion  on  the  minds  of 
tlie  jiir^'.  So  it  odcn  happens  that  a  witness  destroys  tlie  credit 
of  his    t':stimoiiy    hy  inconsistency,   by  prevarication,  by  the 


OF  TRIAL  AND  ITS  INCIDENTS.  185 

manner  of  his  representing  facts,  and  often  by  obtruding  his 
own  sentiments  and  opinions. 

In  the  course  of  the  evidence,  there  will  generally  be  found 
certain  collateral  circumstances  that  will  guide  with  more  cer- 
tainty to  the  discovery  of  the  truth  of  the  case  than  direct  testi- 
mony, by  which  the  Justice  or  jury  ma)'-  explain  and  correct 
direct  proof,  and  ascertain  how  far  it  ought  to  be  credited. 

In  all  cases,  he  who  takes  the  affirmative  side  of  the  issue,  is 
bound  to  adduce  sufficient  proof  to  convince  the  mind  of  its 
truth.  If  the  other  side  can  produce  evidence  of  equal  weight 
and  credit,  so  as  to  counterbalance  it,  the  party  holding  the 
affirmative,  is  not  entitled  to  recover.  So  also,  if  from  the  testi- 
mony adduced  on  both  sides,  the  case  should  be  rendered  very 
doubtful,  the  safest  mode  is  to  decide  against  him  who  takes 
the  affirmative  ;  for  no  man  ought  to  recover  on  a  doubtful 
right. 


After  the  evidence  on  both  sides  is  closed,  it  is  the  right  of 
the  parties,  respectively,  to  address  the  Justice  or  the  jury  upon 
the  case,  which  is  called  summing  it  up. 

The  defendant,  or  the  party  holding  the  negative,  first  sums 
up,  and  the  other  party  replies.  And  if  the  trial  be  by  jury, 
the  Justice  may,  if  he  sees  proper  sum  up  the  case  to  them. 

After  hearing  the  proofs  and  allegations  of  the  parties,  the 
jury  must  be  kept  together  in  some  convenient  place,  under  the 
charge  of  a  constable,  until  they  agree  upon  their  verdict ;  and 
for  that  purpose,  the  Justice  must  administer  to  the  constable 
the  following  oath  : — 

"  You  swear,  in  the  presence  of  Almighty  God,  that  you  will, 
to  the  utmost  of  your  ability,  keep  the  persons  sworn  as  jurors 
on  this  trial,  together,  in  some  private  and  convenient  place, 
without  any  meat  or  drink,  except  such  as  shall  be  ordered  by 
me  ;  that  you  will  not  suffi^r  any  communication  orally,  or 
otherwise,  to  be  made  to  them ;  that  you  Avill  not  communicate 
with  them  yourself,  oi'ally  or  otherwise,  unless  by  my  order,  or 
to  ask  them  whether  they  have  agreed  on  their  verdict,  until 
they  shall  be  discharged  ;  and  that  you  will  not,  before  they 
render  their  verdict,  communicate  to  any  person  the  state  of 
their  deliberations,  or  the  verdict  they  have  agreed  on."  (2  R. 
S.  341,  sec.  110.) 


186  OF  TRIAL  AND  ITS  INCIDENTS. 

No  person  but  a  constable  can  be  sworn  to  attend  the  jury. 
But  if  the  jury  make  up  their  verdict  without  retiring  from  the 
court,  a  constable  need  not  be  sworn.  (2  Cai.  221.  8  J.  R. 
437.     11  id.  134.) 

After  the  jury  have  retired,  the  Justice  ought  not  to  confer 
with  them,  unless  done  with  the  consent  of  the  parties.  The 
practice  is  dangerous  and  improper.  And  it  makes  no  difference, 
although  the  Justice  refuse  to  answer  questions  put  to  him  by 
the  jury.  (10  J.  R.  239.  13  id.  487.  1  Cow.  258.)  It  is  not, 
however,  irregular  for  the  Justice,  at  the  request  of  the  jury,  to 
give  them  further  instructions  upon  the  law  of  the  case,  if  the 
parties  are,  or  have  an  opportunity  of  being  present.  (13 
Wend.  274.) 

When  the  jurors,  after  retiring,  separate,  so  as  to  raise  the 
slightest  suspicion  of  abuse,  the  verdict  will  be  set  aside.  Where 
after  a  cause  was  committed  to  a  jury,  one  of  the  jurors  sepa- 
rated himself  from  the  constable,  and  drank  a  third  of  a  gill  of 
brandy,  the  Supreme  Court  set  the  verdict  aside.    (7  Cow.  562.) 

When  the  jurors  agree  each  to  mark  down  the  sum  he  thinks 
proper,  and  to  divide  the  total  amount  by  the  number  of  jurors, 
their  verdict  so  found,  will  be  irregular.  A  verdict  of  no  cause 
of  action,  and  a  verdict  of  six  cents  damages,  and  six  cents 
costs  for  defendant,  are  to  be  regarded,  where  no  set-off  is 
pleaded,  as  general  verdicts  for  the  defendant.  A  verdict  for 
more  damages  than  the  party  claims,  is  mere  error  in  form  for 
which  a  judgment  will  not  be  reversed.  (15  J.  R.  187.  1 
Cow.  237.) 

When  the  jurors  have  agreed  on  their  verdict,  they  shall  de- 
liver the  same  to  the  Justice,  pubHcly,  who  shall  enter  it  in  his 
docket.  Previous  to  receiving  it,  the  Justice  shall  call  the 
plaintiff.  If  he  be  absent,  and  no  one  appear  for  him,  the 
verdict  shall  not  be  received.     (2  R.  S.  341,  sec.  111.) 

When  the  jury  return  into  court  to  give  in  tlieir  verdict,  the 
Justif^e  should  call  over  their  names,  for  the  purpose  of  ascer- 
taining that  all  arc  present.  If,  liowever,  they  have  agreed 
upon  their  verdict  without  retiring,  their  names  need  not  be 
called. 

'J'lie  Juslif.e  should  ask  them  if  thoy  have  agreed  upon  their 
verdict;  and  if  lli<!y  answer  that  thoy  have,  he  should  then, 
befon;  receiving  the  verdict,  call  the  plaintiff.  If  the  plaintiff, 
although  present,  do  not  answer,  when  thus  called,  the  verdict 


OF  TRIAL  AND  ITS  INCIDENTS.  187 

is  not  to  be  received,  but  a  judgment  of  nonsuit  is  to  be  entered  ; 
for  the  plaintiif  has  a  right  to  submit  to  a  nonsuit,  at  any  time 
before  the  verdict  is  recorded,  and  his  not  answering  when  the 
jury  are  ready  to  give  their  verdict,  is  an  election  on  his  part  to 
become  nonsuited.     (Edw.  Tr.,  3d  ed.,  97.) 

If  the  plaintiff,  when  thus  called,  answers,  the  verdict  must 
be  received  ;  and  the  Justice  should  ask  the  jury,  "  Who  do  you 
find  for,  the  plaintiff  or  the  defendant  ?"  The  foreman  of  the 
jury  will  then  state  what  their  verdict  is,  which  the  Justice 
must  enter  in  his  docket,  and  then  say  to  the  jury,  "  Listen  to 
your  verdict,  as  the  court  has  recorded  it ;  you  say  you  find  for 
the  plaintiff,  (or  defendant,  as  the  case  may  be) — so  say  you 
all ;"  to  which  the  jury  signify  their  assent.     (Id.) 

Where  the  jury  is  empannelled  before  Sunday  commences, 
they  may  bring  in  their  verdict  on  Sunday.  No  court  can  be 
opened,  or  transact  any  civil  business  on  Sunday,  except  re- 
ceiving a  verdict,  or  discharging  a  jury.     (15  J.  R.  119.) 

The  jury  may  at  any  time  before  their  verdict  is  recorded, 
correct  it,  either  in  form  or  substance.  They  may  do  this  of 
themselves,  or  on  the  suggestion  and  advice  of  the  Justice. 
They  may  do  it  immediately  upon  discovering  or  being  apprised 
of  the  mistake,  or  may  retire  a  second  time  and  make  the  cor- 
rection, on  more  mature  deliberation,  at  their  room.  They  may 
also,  alter  their  verdict  after  having  sealed  it  up  and  delivered 
it,  if  they  desire  to  do  so,  and  for  that  purpose  may  retire  to 
their  room  again.     (6  J.  R.  68.     7  id,  32.) 

When  the  Justice  is  satisfied  that  the  jury  cannot  agree  on 
their  verdict,  after  they  have  been  out  a  reasonable  time,  he 
may  discharge  them  and  issue  a  new  venire,  returnable  within 
forty-eight  hours  ;  unless  the  parties  shall  have  consented  that 
the  Justice  may  render  judgment  on  the  evidence  already  before 
him ;  which,  in  such  cases,  he  may  do.    (2  R.  S.  341,  sec.  112.) 

While,  on  the  one  hand,  a  jury  should  not  be  kept  out  so  long 
that  their  verdict  will  be  the  effect  of  compulsion,  and  not  of 
their  reason  and  understanding  ;  on  the  other,  the  Justice 
should  not  be  too  ready  to  grant  their  discharge.  In  most 
cases,  notwithstanding  an  apparently  irreconcilable  difference 
of  opinion  at  first,  by  discussion  and  reflection,  they  will  agree. 


CHAPTER  X. 

OP    JUDGMENTS,  AND    FILING    TRANSCRIPTS    THEREOF. 

I  SHALL  treat  the  subjects  of  this  chapter  under  the  following 
heads  : 

1.  Definition  and  Nature  of  Judgment. 

2.  Judgment  of  Discontinuance. 

3.  Judgment  of  Nonsuit. 

4.  Judginent  hy  Confession. 

5.  Judgment  on  a  hearing   before  the  Justice^  or  on  a 

Verdict. 

6.  Transcripts  of  Jtidgments. 

7.  Damages. 

8.  Costs. 

1.  Definition  and  Nature  of  Judgment. 

A  judgment  is  the  conchision  which  naturally  and  regularly 
follows  from  the  premises  of  law  and  fact  presented  by  the  is- 
sue, and  decided  on  the  argument  or  trial.  When  rendered  for 
the  plaintiff,  it  is  the  remedy  prescribed  by  law,  for  the  redress 
of  the  injury  complained  of;  the  suit  or  action,  being  only  the 
vehicle  or  means  of  attaining  and  administering  it.  (3  Blk. 
Com.  396.) 

Judgments  are  either  interlocutory  or  final.  Interlocutory 
judgments  are  such  as  are  given  in  an  intermediate  stage  of  the 
cause,  upon  some  proceeding  which  does  not  finally  determine 
or  complete  the  suit.  (3  Blk.  Com.  390,  397.)  Final  judgments 
arc  such  as  at  once  put  an  end  to  the  action,  by  declaring  that 
the  piaintitr  cidier  has,  or  has  not  cntilled  himself  to  recover 
the  debt  or  damages  he  sues  for.     (Id.  398.) 

2.  Judgment  of  Discontinuance. 

Juflgtnont  of  disf,oiiliiiuaii('(\  is  a  lucix!  susjxMision  of  the  pro- 
ceeding's, without  air-cUng  th(;  miMils  of  th(;  adioiL  It  is  ren- 
dered ill  several  cases  specified  by  statute. 


OF  JUDGMENTS,  &c.  I39 

If  previous  to  joining  issue  in  any  cause,  (except  where  the 
defendant  shall  have  been  arrested  by  warrant,)  the  defendant 
make  affidavit  that  the  Justice  before  whom  the  cause  is  pond- 
ing is  a  material  witness  for  such  defendant,  Avithout  whose 
testimony  he  cannot  safely  proceed  to  trial,  and  sets  forth  in  the 
aflldavit,  the  particular  facts  and  circumstances  he  expects  to 
prove  by  the  Justice,  judgment  of  discontinuance  must  be  en- 
tered, provided  the  Justice  is  satisfied  that  he  is  a  material  wit- 
ness for  the  defendant,  and  that  without  his  testimony,  the  de- 
fendant cannot  safely  proceed  to  trial,  but  without  costs  against 
either  party.     (2  R.  S.  342,  sec.  119.) 

The  Justice  has  no  right  to  interpose  his  private  know^ledge 
or  recollection,  as  an  answer  to  the  affidavit ;  but  he  must  judge 
of  the  facts  and  circumstances  set  forth  in  the  affidavit.  (24 
Wend.  264.  3  Hill,  32.)  Yet  judgment  of  discontinuance 
should  not  be  entered,  unless  the  facts  and  circumstances  de- 
tailed, are  such  that  the  Justice  can  judicially  pronounce  them 
relevant.  The  affidavit  should  also  contain  enough  to  show 
that  the  Justice  is  a  necessary  as  well  as  a  7naterial  witness  ; 
especially  where  on  its  face  it  imports  that  there  are  others  who 
probably  know  as  much  of  the  matters  detailed  as  the  Justice. 
(3  Hill,  32.) 

FORM    OP    AFFIDAVIT. 

In  Justices'  Court,  before  David  Long,  Justice. 
John  Doe        ^ 
against         > 
Richard  Roe.    5 

Chenango  County,  ss. — Richard  Roe,  the  above  named  de- 
fendant, being  duly  sworn,  says,  that  David  Long,  Esq.,  the 
Justice  of  the  Peace  before  whom  the  above  entitled  cause  is 
pending,  is  a  material  witness  for  deponent  in  said  cause,  with- 
out whose  testimony  he  cannot  safely  proceed  to  trial. 

Deponent  further  says,  that  he  expects  to  prove  by  the  said 
Justice,  the  following  facts  and  circumstances  :  [here  set  forth 
the  particular  facts  and  circumstances  which  he  expects  to  prove 
by  the  Justice.^ 

Deponent  further  says,  that  he  is  not  able,  so  far  as  he  can 


190  OF  JUDGMENTS,  AND 

ascertain,  to  prove  the  facts  and  circumstances  above  mentioned, 
by  any  other  person  than  the  said  Justice. 

Richard  Roe. 
Sworn  before  me,  this  1st  day  of  July,  1849. 
David  Long,  Justice. 

When  the  defendant  in  his  answer,  pleads  a  set-off,  and  the 
balance  found  due  the  defendant  exceeds  one  hundred  dollars, 
and  the  defendant  does  not  require  that  so  much  should  be  set 
off  as  will  satisfy  the  plaintiff's  debt,  the  Justice  must  enter 
judgment  of  discontinuance  for  the  defendant,  with  costs.  (Laws 
of  1840,  c.  317,  sec.  53.) 

When  it  appears  upon  the  trial  of  a  cause,  that  the  amount 
of  the  plaintiff's  claim,  together  with  the  demands  set  off  by 
the  defendant,  exceed  four  hundred  dollars,  judgment  of  dis- 
continuance must  bo  rendered  with  costs  to  the  plaintiff.  (2  R. 
S.  333,  sec.  55.     10  Wend.  556.) 

Where  an  answer  of  title  to  land  is  interposed,  and  the  requi- 
site undertaking  executed,  the  suit  must  be  discontiued  and 
each  party  pay  his  own  costs.  (Code,  sec.  57.)  But  where  the 
plaintiff's  complaint  contains  several  causes  of  action,  the  suit 
must  be  discontinued  only  as  to  such  of  the  causes  of  action  to 
which  a  defence  of  title  is  interposed.  (Id.  62.)  If  it  appear 
on  the  trial  of  an  action,  from  the  plaintiff's  own  showing  that 
the  title  to  lands  is  in  question,  which  title  is  disputed  by  the 
defendant,  the  Justice  must  dismiss  the  cause,  and  the  plaintiff 
pay  the  costs.     (Code,  sec.  59.) 

An  irregular  adjournment  may  be  a  discontinuance  of  the 
cause.  So  an  unreasonable  delay  in  proceeding  with  the  cause, 
on  the  return  of  process,  or  at  the  time  to  which  the  cause  is 
adjourned,  will  amount  to  a  discontinuance.  As  where  a  suit 
was  adjourned  to  ten  o'clock  in  the  forenoon,  and  the  defendant 
appeared  at  the  time  and  waited  near  three  hours,  and  the  Jus- 
tice not  attending  he  went  away,  and  the  Justice  came  soon 
aflf.'r  and  h<>urd  the  cause  in  the  absence  of  llie  defendant,  it  was 
held  tli.ii  l»y  llio  delay  of  the  Justice  in  attending,  the  cause  be- 
came discontinued.  (Mdw.  Tr.  3d  cd.  119.)  But  if  the  delay 
in  proceeding  be  sufliciently  accounted  for,  it  will  not  be  a  dis- 
continuance-^-as  a  delay  of  five  hours,  in  consequence  of  the 
Justice  being  engaged  in  thf  trial  of  another  cause.     (12  J.  R. 


FILING  TRANSCRIPTS  THEREOF.  191 

217.     10  Wend.  102.)     So  where  the  defendant  consents  to  a 
delay  for  the  convenience  of  the  Justice.     (15  J.  R.  504.) 

Where  a  suit  has  been  tried  on  the  merits  before  the  Justice, 
and  submitted  for  his  decision,  and  he  neglects  to  render  judg- 
ment, and  to  note  the  same  in  his  docket  within  four  days  there- 
after, such  omission  will  work  a  discontinuance.  (5  Hill,  60.) 
In  calculating  the  time,  it  should  be  four  full  days  ;  that  is,  the 
day  when  the  cause  was  submitted,  should  be  excluded ;  and 
if  the  fourth  day  thereafter,  should  fall  on  Sunday,  the  judg- 
ment ought  to  be  rendered  the  day  previous.     (7  Cow.  147.) 

3.  Judgment  of  Nonsuit. 

Judgment  of  nonsuit  is  rendered  in  consequence  of  some  de- 
fault or  neglect  of  the  plaintiff,  who  is  allowed  to  begin  his  suit 
again,  upon  payment  of  costs.     (3  Blk.  296.) 

Judgment  of  nonsuit,  with  costs,  shall  bo  rendered  against  a 
plaintiff  prosecuting  a  suit  before  a  Justice  of  the  Peace,  in  the 
following  cases  :  (2  R.  S.  343,  sec.  120.) 

1.  If  the  plaintiff  discontinue  or  ivithdraw  his  action.  A 
plaintiff  may,  as  a  general  rule,  discontinue  or  withdraw  his 
action  at  any  time  before  a  verdict  is  received  and  recorded,  or 
before  judgment  has  been  rendered  by  the  Justice,  where  the 
trial  is  without  a  jury.  But  where  the  trial  is  without  a  jury, 
the  plaintiff  cannot  withdraw  his  action,  and  become  nonsuit, 
after  the  cause  has  been  finally  submitted  to  the  Justice,  for  his 
decision.     (11  J.  R.  457.) 

The  plaintiff,  it  would  seem,  cannot  discontinue  or  witlidraw 
his  action  at  any  time  other  than  when  the  parties  are  to  ap- 
pear before  the  Justice,  except  with  the  consent  of  the  defend- 
ant. As  if  a  cause  has  been  adjourned,  the  plaintiff  cannot  at 
any  time  previous  to  the  time  appointed  for  trial,  withdraw  the 
suit,  unless  both  parties  appear  before  the  Justice  for  that  pur- 
pose. The  reason  for  this  rule  is,  that  where  the  plaintiff  dis- 
continues, or  withdraws  his  action,  the  Justice  must  forthwith 
render  judgment,  and  enter  the  same  in  his  docket.  As  this 
judgment  is  to  be  for  the  defendant's  costs,  the  Justice  may  not 
be  able  to  ascertain  the  costs,  except  at  the  time  appointed  for 
the  trial ; — as  if  subpoenas,  or  a  venire  have  been  issued,  on  the 
defendant's  application.     Aside,  however,  from  the  difficulty  of 


192  OF  JUDGMENTS,  AND 

ascertaining  the  costs,  there  would  seem  to  be  no  objection  to  a 
suit  being  withdrawn  at  any  time.     (Edw.  Tr.  3d  ed.  120.) 

2.  If  the  plaintiff  fail  to  appear  on  the  return  of  any  process 
within  one  hour  after  the  same  teas  returnable  ;  or  if  after  an 
adjournment,  he  fail  to  appear  within  one  hour  after  the  time 
to  wJdch  the  adjournment  shall  have  been  onade.  A  judgment 
of  nonsuit  is  not  to  be  entered  for  the  non-appearance  of  the 
plaintiff,  unless  the  defendant  appear  and  require  such  judg- 
ment to  be  entered.  If  neither  party  appear,  the  suit  will  be 
discontinued  ;  but  no  judgment  is,  in  such  case,  to  be  entered 
and  each  party  must  pay  his  own  costs.     (Id.) 

A  Justice  may  refuse  to  enter  a  judgment  of  nonsuit  against 
a  plaintiff,  who  fails  to  appear  in  one  hour  after  process  is  re- 
turnable, when  a  reasonable  cause  exists  for  such  refusal.  (11 
Wend.  31.) 

So,  if  neither  party  appear  within  the  hour,  the  suit  will  not, 
of  course,  be  discontinued  ;  but  if  the  plaintiff  appear  in  a  rea- 
sonable time  after  the  expiration  of  the  hour,  the  Justice  may 
go  on  with  the  suit.  It  is  not  to  be  expected,  that  the  parties 
should  in  all  cases  appear  within  a  certain  time  ;  they  may  be 
prevented  by  unavoidable  accident,  and  a  variety  of  other 
causes.     (Edw.  Tr.,  3d  ed.,  121.) 

If  the  plaintiff  appear  in  due  time,  he  is  not  to  be  compelled 
to  proceed  to  trial  immediately  upon  the  expiration  of  the  hour ; 
but  the  Justice  should  allow  a  reasonable  time,  upon  sufficient 
cause,  as  the  non-appearance  of  witnesses,  &,c.     (Id.) 

3.  If  the  plaintiff  becomes  nonsidtcd  on  the  trial.  The  plain- 
tiff sometimes  voluntarily  submits  to  a  nonsuit ;  and  this  indeed, 
is  his  usual  and  proper  course,  when  there  occurs  an  ujiexpected 
defect  in  the  testimony. 

The  Justice  may,  in  all  cases,  nonsuit  the  plaintiff  wiicn  in 
his  opinion  the  testimony  offered,  does  not  support  the  action. 
(12  J.  R.  299.) 

The  application  for  a  nonsuit,  is  usually  made  after  the  plain- 
tiff lias  gone  through  with  his  evidence,  and  before  the  defend- 
ant has  gone  into  evidence  on  his  part ;  though,  as  already 
stated,  a  nonsuit  may  be  granted  after  the  evidence  has  been 
clo.sed  on  ])olli  sides,  at  any  time  before  the  case  is  submitted. 

4.  If  the  plaintiff  does  not  appear  on  the  coming  in  of  the 
jury  to  hear  their  verdict ;  or  if,  although  present,  he  does  not 
answer  when  called.     Tiie  verdict,  in  such  a  case,  is  not  to  be 


FILING  TRANSCRIPTS  THEREOF.  193 

received,  but  a  judgment  of  nonsuit  is  to  be  entered.  For  the 
plaintiff  has  a  right  to  submit  to  a  nonsuit  at  any  time  before 
the  verdict  is  rendered  ;  and  his  not  answering  when  the  jury 
are  ready  to  give  their  verdict,  is  an  election  on  his  part  to 
become  nonsuited.     (3  Denio,  77.     3  Hill,  75.) 

4.  Judgment  hy  Confession. 

A  Justice  of  the  Peace  may  take  and  enter  judgment  on  the 
confession  of  a  defendant  in  any  case  where  the  debt  or  dama- 
ges confessed,  shall  not  exceed  two  hundred  and  fifty  dollars, 
with  such  stay  of  execution  as  may  be  agreed  on  by  the  parties 
interested  in  such  judgment.  (2  R.  S.  342,  sec.  114.  9  Wend. 
569.     Code,  sec.  53.) 

No  confession  shall  be  taken,  or  judgment  rendered  thereon, 
unless  the  following  requisites  be  complied  with  :  (Id.  sec.  115.) 

1.  The  defendant  must  personally  appear  before  the  Justice. 

2.  The  confession  must  be  in  writing,  signed  by  the  defend- 
ant, and  filed  with  the  Justice. 

3.  If  the  judgment  be  confessed  for  a  sum  exceeding  fifty 
dollars,  the  confession  shall  be  accompanied  by  the  affidavit  of 
the  defendant  and  plaintiff,  stating  that  such  defendant  is  hon- 
estly and  justly  indebted  to  the  plaintiff,  in  the  sum  named  in 
such  affidavit,  over  and  above  all  just  demands  which  he  has 
against  him,  and  that  sucli  confession  is  not  made  or  taken  with 
a  view  to  defraud  any  creditor. 

Every  judgment  confessed  without  a  compliance  with  the 
provisions  of  the  last  preceding  section,  shall  be  void  as  against 
all  persons  except  a  purchaser  in  good  faith  of  any  goods  or 
chattels,  lands  or  tenements,  under  such  judgment,  and  except 
the  defendant  making  such  confession.     (Id.  sec.  116.) 

The  statute  does  not  require  the  appearance  of  the  plaintiff 
Upon  a  confession  of  judgment.  The  want  of  such  appearance, 
therefore,  cannot  be  taken  advantage  of  after  confession,  by  the 
defendant.  If,  however,  a  judgment  is  confessed  for  a  sum  ex- 
ceeding fifty  dollars,  it  would  be  necessary  that  both  parties 
should  personally  appear  before  the  Justice,  for  the  purpose  of 
making  the  affidavit  required  in  such  case.  (Edw.  Tr.,  3d 
ed.,  118.) 

A  creditor  having  a  demand  exceeding  fifty  dollars,  may  take 
from  his  debtor  several  confessions,  each  for  a  sum  less  than 

13 


194  OF  JUDGMENTS,  AND 

fifty  dollars,  to  the  full  amount  of  his  claim,  and  thus  avoid  the 
necessity  of  making  the  affidavit  required  by  statute.  (7  Cow. 
310.) 

The  confesssion  should  be  for  a  specific  sum.  A  judgment 
entered  on  such  a  sum  as  A.  B.  should  award  is  bad,  the  con- 
fession being  made  before  the  award  is  declared  ;  for  a  Justice 
has  no  power  to  enter  a  confession  for  an  uncertain  and  unli- 
quidated amount.  But  a  confession  for  the  amount  of  a  note 
described,  so  as  to  be  capable  of  being  identified,  or  for  a  sum 
to  be  ascertained  by  calculation,  would  probably  be  good.  (4 
J.  R.  423.) 

The  confession  should  state  how  the  damages  confessed 
arose,  so  that  the  Justice  may  know  whether  the  execution  to 
be  issued  upon  the  judgment  should  contain  a  clause  authori- 
zing an  arrest  of  the  defendant. 

FORM    OF    CONFESSION    OF    JUDGMENT. 

Ill  Justices'  Court,  before  David  Long,  Justice. 
John  Doe        i 
against  \  Confession  of  Judgment. 

Richard  Roe.  ) 
I  hereby  confess  judgment  in  this  cause,  at  the  suit  of  the 
above  named  plaintiff,  for  forty-five  dollars  and  fifty  cents,  the 
amoimt  of  wages  due  the  said  plaintiff,  besides  costs  of  suit ; 
and  consent  that  the  said  plaintiff  enter  judgment  against  me 
accordingly. 

Dated  at  Oxford,  county  of  Chenango,  the  lOtli  day  of  May, 
1849.  Richard  Roe. 

The  affidavit  of  the  parlies,  which  is  required  only  where 
the  judgment  is  confessed  for  a  sum  exceeding  fifty  dollars, 
must  state  that  the  defendant  is  honestly  and  justly  indebted  to 
the  plaintifl'  in  the  sum  named  in  such  affidavit,  over  and  above 
all  just  demands  which  he  has  against  him,  and  that  the  con- 
fession is  not  made  or  taken  with  a  view  to  defraud  any  credi- 
toi.  Wiilioiit  such  affidavit,  the  judgment  will  be  void  as 
against  all  persons,  except  the  defendant  and  purchasers  in 
good   faith  luuler  the  judgment.     (2  R.  S.  3^2,  sec.  115,  116.) 

As  the  affidavit  must  expressly  refer  to  the  confession,  the 


FILING  TRANSCRIPTS  THERKOF.  J 95 

most  explicit  and  convenient  mode  of  making  the  affidavit  will 
be  to  subjoin  or  annex  it  to  the  confession. 

FORM    OP    AFFIDAVIT. 

Town  of  Oxford^  ss. — We,  John  Doe  and  Richard  Roe,  the 
parties  named  in  the  foregoing  (or  annexed)  confession  of  judg- 
ment, being  both  duly  sworn,  do  severaUy  depose  and  say,  that 
the  said  Richard  Roe  is  honestly  and  justly  indebted  to  the  said 
John  Doe,  in  the  sum  of  seventy-five  dollars,  over  and  above  all 
just  demands  which  the  said  Richard  Roc  has  against  the  said 
John  Doe  ;  and  that  said  confession  of  judgment  is  not  made  or 
taken,  whith  a  view  to  defraud  any  creditor. 

John  Doe. 
Richard  Roe. 
Subscribed  and  sworn  this  10th 
day  of  May,  1849,  before  me, 

David  Long,  Justice. 

.    If  there  are  more  than  one  plaintiff  or  defendant,  the  affidavit 
should  in  strictness  be  made  by  all  of  them. 

5.  Judgment  on  a  hearing  before  the  Justice^  or  on  a  Verdict. 

After  a  cause  has  been  submitted  to  the  Justice,  he  either  ren- 
ders judgment  immediately,  as  he  may  do,  where  he  is  satisfied 
what  judgment  to  give  ;  or  he  may  reserve  the  case  for  consider- 
ation. 

In  cases  where  the  plaintiff  shall  be  nonsuited,  discontinue, 
or  withdraw  his  action,  and  where  judgment  shall  be  confessed, 
and,  in  all  cases  where  a  verdict  shall  be  rendered,  or  the  de- 
fendant shall  be  in  custody  at  the  time  of  hearing  the  cause,  the 
Justice  shall  forthwith  render  judgment,  and  enter  the  same  in 
his  docket.     (2  R.  S.  343,  sec.  125.) 

As  a  general  rule,  the  Justice  must  render  judgment,  and  enter 
the  same  in  his  docket,  within  four  days  after  the  cause  is  sub- 
mitted to  him  for  a  final  decision.  (Id.)  A  judgment  rendered 
after  four  days,  is  erroneous  and  will  be  reversed  ;  (19  Wend,. 
371,)  though  such  omission  on  the  part  of  the  Justice  will  form 
no  bar  to  a  second  action  for  the  same  cause.  (5  Hill,  CO.  6 
id.  38.) 

There  is  no  such  thing  in  a  Justices'  Court,  as  a  judgment  by 


196  OF  JUDGMENTS,  AND 

default  against  the  defendant.  His  absence  at  the  return  day 
of  the  process,  or  at  the  adjourned  day,  is  not  construed  into  a 
confession  of  any  thing ;  but  the  plaintiff's  demand  in  such  case, 
must  be  proved  in  the  same  manner  as  though  the  defendant 
were  present.     (10  J.  R.  106.     Code,  sec.  64.) 

Judgment  for  the  defendant,  with  costs  shall  be  rendered, 
whenever  a  trial  has  been  had,  and  it  is  found,  by  verdict,  or  by 
the  decision  of  the  Justice,  that  the  plaintiff  has  no  cause  of  ac- 
tion against  the  defendant.     (2  R.  S.  343,  sec.  121.) 

If  upon  the  trial  of  the  cause,  or  upon  an  ex  'parte  hearing,  in 
those  cases  where  it  may  be  had,  on  the  defendant  failing  to 
appear,  a  sum  in  debt  or  damages  shall  be  found  in  favor  of  the 
plaintiff,  then  judgment  shall  be  rendered  against  the  defendant, 
for  such  debt  or  damages  and  the  costs.     (2  R.  S.  343,  sec.  122.) 

When  a  balance  shall  be  found  in  favor  of  a  party,  either  by 
the  verdict  of  a  jury,  or  upon  a  hearing  before  the  Justice,  ex- 
ceeding the  sum  for  which  the  Justice  is  authorized  to  give  judg- 
ment, such  party  may  remit  and  relense  the  excess,  and  may 
take  judgment  for  the  residue.     (Id.  343,  sec.  126.) 

If  process  shall  have  issued  against  two  or  more  persons 
jointly  indebted,  and  shall  have  been  personally  served  upon 
either  of  the  defendants,  the  defendant  who  may  have  been 
served  with  process,  shall  answer  to  the  plaintiff;  and  the  judg- 
ment in  such  case,  if  rendered  in  favor  of  the  plaintiff,  shall  be 
against  all  the  defendants,  in  the  same  manner  as  if  all  had  been 
served  with  process.     (2  R.  S.  343,  sec.  123.) 

Such  judgment  will  be  conclusive  evidence  of  the  liability  ot 
the  defendant,  who  was  personally  served  with  process  in  the 
suit,  or  who  appeared  therein;  but  against  every  other  defen- 
dant, it  will  be  evidence  only,  of  the  extent  of  the  plaintiff's  de- 
mand after  the  liability  of  such  defendant,  shall  have  been  es- 
tablished by  the  evidence.     (Id.  343,  sec.  124.) 

Whenever  a  judgment  is  rendered  by  a  Justice  against  any 
party,  (unl(;ss  wjierc  it  is  otherwise  expressly  provided,)  it  must 
be  with  costs  of  tiie  suit;  but  the  whole  amoiuit  of  all  the  items 
of  sucli  costs  are  not,  in  any  case,  to  exceed  five  dollars.  (Sec, 
127.) 

The  cost.s  of  a  commission  to  examine  foreign  witnesses,  may 
be  taxed  in  the  judgment,  although  the  same  exceed  the  sum  of 
five  dollars.     (Laws  1811,  p.  112.) 


FILING  TRANSCRIPTS  THEREOF.  197 

6.   Transcripts  of  Judgments. 

Furrnerly,  a  transcript  of  a  jiidgment  rendered  by  a  Justice  of 
the  Peace,  could  only  be  obtained  where  the  judgment  was  for 
above  twenty-five  dollars,  exclusive  of  costs.  Under  the  provis- 
ions of  the  Code,  the  amount  of  the  judgment  is  immateiial.  No 
judgment  for  a  less  sum  than  twenty-five  dollars,  exclusive  of 
costs,  however,  will  be  a  lien  upon  real  property. 

It  is  enacted  that  a  Justice  of  the  Peace,  on  the  demand  of  a 
party,  in  whose  favor  he  shall  have  rendered  a  judgment,  shall 
give  a  transcript  thereof  which  may  be  filed  and  docketed  in  the 
oflice  of  the  clerk  of  the  county  where  the  judgment  was  ren- 
dered. The  time  of  the  receipt  of  the  transcript  by  the  clerk, 
must  be  noted  thereon,  and  entered  in  the  docket ;  and  from  that 
time  the  judgment  will  be  a  judgment  of  the  county  court.  A 
certified  transcript  of  such  judgment  may  be  filed  and  docketed 
in  the  clerk's  office  of  any  other  county,  and  with  the  like  effect 
in  any  respect,  as  in  the  county  where  the  judgment  was  ren- 
dered ;  except  that  it  will  be  a  lien  only  from  the  time  of  filing 
and  docketing  the  transcript.     (Code,  sec.  63.) 

It  is  not  necessary  to  make  a  literal  transcript,  or  copy  of  all 
the  proceedings  in  the  cause,  as  entered  in  the  docket.  The 
following  form  will  be  sufficient : 

In  Justices'  Court,  before  David  Long,  Justice. 
John  Doe         \ 
against  >  Transcript  of  Judgment. 

Richard  Roe.    j 
Judgment  rendered  May  10th,  1849,  for  the  plaintiff",  for  the 
sum  of  -----  $30  00 

Costs  -  -  -  -  -  3  00 


$33  00 

I  certify  that  the  above  is  a  transcript  of  a  judgment  rendered 
by  me,  in  the  above  entitled  cause.  Dated  Oxford,  May  10th, 
1849. 

David  Long,  Justice. 

Whenever  a  judgment  shall  be  rendered  by  a  Justice  of 
the  Peace,  on  default,  and  in  the  absence  of  the  party  against 
whom  the  same  is  rendered,  it  shall  be  the  duty  of  such  Justice, 
on  the  demand  of  any  person  interested  therein,  to  give  to  such 


198  OF  JUDGMENTS,  AND 

person  a  transcript  of  such  judgment,  together  with  a  copy  of  the 
process,  pleadings,  and  proofs  in  the  cause,  when  such  plead- 
ings and  proofs  are  reduced  to  writing,  or  the  substance  thereof, 
when  not  reduced  to  writing,  or  such  parts  of  such  process, 
pleadings  and  proofs  as  may  be  lequired,  on  his  being  paid  there- 
for txceiity-five  cents  for  such  transcript,  and  six  cents  a  folio,  for 
the  residue  thereof.     (Laws  1841,  p.  114.) 

A  transcript  may  be  made  after  the  expiration  of  the  Justice's 
Jerm  of  office.  (8  Wend.  393  aud  39.5.)  It  need  not  show  on 
its  face  that  the  Justice  had  jurisdiction  ;  for  the  transcript  is 
prima  facie  evidence  of  that  fact.  (6  id.  G66.  9  Cow.  182.  10 
id.  233.) 

If  the  Justice  refuse  to  give  a  transcript,  a  mandamus  will  lie 
against  him.     (8  Cow.  133.) 

A  transcript  duly  filed,  deprives  the  Justice  of  any  further  con- 
trol over  the  judgment.     (2  Cow.  506.) 

7.  Damages. 

Damages  are  a  pecuniary  recompense,  for  an  injury.  (Sayer 
on  Damages,  1.)  At  common  law,  they  are  recoverable  in 
every  personal  action.     (Id.  G.) 

As  damages  are  usually  a  mere  matter  of  pecuniary  compu- 
tation, there  is,  in  general,  but  little  difficulty  in  determining 
their  amount ;  as  the  money,  with  interest ;  the  value  of  the 
thing  agreed  to  be  delivered  at  the  time  and  place  of  delivery ; 
the  work  agreed  to  be  done  ;  the  goods  sold  ;  labor  performed  ; 
the  injury  done  to  the  property  ;  or  the  value  of  the  goods  taken 
and  converted. 

In  estimating  damages  upon  contract,  where  the  contract  is 
to  pay  so  much  money  absolutely,  or  on  a  certain  condition,  the 
full  sum  agreed  on  by  the  jiarties,  should  in  general  be  allowed. 
This  is  not  to  be  understood,  however,  with  regard  to  damages 
for  tli(^  non-porformance  of  contracts.  In  such  cases,  tltc  price 
agreed  to  be  paid  on  actual  performance,  is  not  the  measure  of 
damages  ;  the  party  ready  and  willing  to  perform,  can  only  re- 
cover daningcs  to  the  extent  of  the  loss  or  injury  sustained  by 
him.  \Vli(M-e,  however,  the  non-p;M-formance  is  attributable  to 
fraud,  or  to  a  desire  to  benefit  the  failing  party,  these  circum- 
stances may  be  laKen  into  considoralion  to  enhance  the  dam- 
ges.     (21  Wend.  4.57.) 

VViic-c  parties  agree  that  in  default  of  performance,  a  certain 


FILING  TRANSCRIPTS  THEREOF.  I99 

sum  shall  be  paid  by  the  one  who  fails  to  perfoim  his  contract ; 
the  question  sometimes  arises  whether  this  is  a  mere  penalty, 
which,  on  forfeiture,  is  to  have  the  effect  of  a  penalty  in  a  com- 
mon bond ;  or  is  intended  as  stipulated  damages  to  be  allowed 
in  full  for  the  breach  of  the  contract.  This  will  be  determined 
by  the  real  intent  of  the  parties,  and  the  natin-e  and  terms  of  the 
agreement.  Thus,  should  A.  agree  to  buy  a  horse  of  B.,  and 
pay  B.  his  value,  and  if  A.  fail,  then  to  pay  B.  one  hundred  dol- 
lars, which  sum  is  equal  to  the  value  of  tlie  horse,  this  would  be 
a  penalty  ;  because  the  sum  stipulated  is  obviously  beyond  the 
damages  B.  could  sustain,  by  the  refusal  of  A.  to  receive  the 
horse.  But  had  it  been  five  or  ten  dollars,  the  inference 
would  have  been  different.  So  also,  if  the  parties  had  gone  on 
to  say,  in  so  many  words,  '•  we  consent  to  fix  and  liquidate  the 
one  hundred  dollars  as  the  amount  of  damages  to  be  paid  by 
the  failing  party  ;"  this  would  bind  to  the  payment  of  the  sum, 
as  stipulated  damages  ;  the  intent  being  too  plain  to  admit  of  mis- 
construction. (3  John.  Cas.  297.  5  Cow.  144.  15  John.  200. 
13  Wend.  .587.)  So,  if  A.  agree,  in  consideration  of  fifteen  dol- 
lars, to  deliver  B.  twelve  bushels  of  v\^heat,  or  pay  B.  twenty- 
five  dollars  ;  upon  A.'s  failure,  B.  may  recover  the  twenty-five 
dollars.     (7  John.  72.) 

In  actions  for  lorongs^  the  damages  may,  in  some  cases,  ex- 
ceed the  mere  injury  sustained.  An  exercise  of  this  discretion 
is  often  highly  salutary  and  necessary. 

In  an  action  for  a  trespass,  where  the  conduct  of  the  defen- 
dant has  been  wilful,  malicious,  or  cruel,  exemplary  damages 
are  sometimes  given,  by  way  of  punishment  to  the  defendant, 
and  a  liberal  indemnity  to  the  plaintifi'for  his  time  and  expense 
in  seeking  his  remedy,  as  well  as  his  real  damages.  (14  Johns. 
352.)  In  an  action  for  throwing  poisoned  barley  upon  the  plain- 
tiff's premises  in  order  to  poison  his  poultry,  it  was  held  that 
the  malicious  intent  of  the  defendant  miglft  be  considered,  and 
exemplary  damages  given.     (2  Stark.  R.  317.) 

In  an  action  for  taking  and  converting  goods,  the  increased 
value  of  the  chattel  converted,  at  the  time  of  the  demand,  at  any 
subsequent  time,  or  even  down  to  the  time  of  the  trial,  with  in- 
terest from  the  time  of  conversion,  may  be  allowed  in  the  dis- 
cretion of  the  Justice  or  jury.  (2  Caines'  Cas.  in  Error,  210.  2 
John.  280.  8  id.  446.  20  AVend.  91.)  Indeed,  the  true  rule  of 
damages,  is,  the  highest  price  intermediate  the  time  of  conver- 


200  OF  JUDGMENTS,  AND 

sion  and  trial.  (3  Cow.  62.)  But,  in  general,  the  measure  ot 
damages  in  these  cases,  is  the  value  of  the  goods  at  the  time 
and  place  of  conversion  ;  though  it  is  always  proper  to  allow  in- 
terest, by  way  of  damages  upon  that  value,  from  the  time  the 
goods  were  taken  or  wrongfully  converted.  (14  John.  128. 
Anth.  N.  P.  156.)  Where,  however,  the  defendant  acts  in  good 
faith,  supposing  the  goods  to  be  his  own  ;  or  seizes  goods  under 
an  execution,  supposing  them  to  be  the  defendant's  in  the  exe- 
cution, and  in  other  cases,  where  he  acts  under  a  mistaken  or 
doubtful  right,  nothing  should  be  allowed  beyond  the  plaintift"'s 
actual  damages.  In  an  action  for  converting  a  bill  of  exchange, 
the  measure  of  damages  is  the  principal  and  interest  due  thereon, 
at  the  time  of  the  conversion.     (3  Camp.  477.) 

In  an  action  for  the  non-delivery  of  goods  contracted  to  be  de- 
livered at  a  specified  time,  where  the  price  is  paid  in  advance, 
the  rule  of  damages  is  the  highest  price  intermediate  the  time 
the  goods  ought  to  have  been  delivered  and  the  trial.  (7  Cow. 
681.     Vide  5  Wend.  395.) 

A  bailee,  or  one  having  a  special  property  in  chattels,  being 
answerable  to  the  general  owner,  unless  he  takes  good  care 
of  them,  may  recover  their  whole  value  in  damages,  against 
the  wrongdoer  who  takes  them  away  ;  and  this,  though  the 
bailment  is  merely  gratuitous. 

Where  property  is  wrongfully  taken,  the  subsequent  sale  of 
it  under  an  execution  in  favor  of  the  torongdoer,  will  not  save 
the  party  from  answering  in  damages,  to  the  full  value  of  the 
property.  If,  however,  the  execution  were  in  favor  of  a  tJiird 
person  against  tlie  oioncr,  that  fact  might,  perhaps,  be  shown, 
in  mitigation  of  damages.     (21  Wend.  394.) 

If,  by  the  negligence  of  A.  in  building  his  house  adjoining 
that  of  B.,  the  house  of  B.  is  thrown  down,  A.  is  liable  only  for 
such  sum  in  damages  as  was  the  value  of  the  old  house,  and 
not  the  whole  expcnSe  of  building  a  now  one.     (Peake's  Cas.  15.) 

In  an  action  for  encroaching  on  the  plaintiff's  wharf,  the  rule 
of  (laniag<;s  is  the  current  value  of  the  wluuf,  during  the  time  of 
the  encroachment.     (Antli.  N.  P.  85.) 

The  plaintiff  can  r(!cov<M'  no  more  damages  than  he  claims  by 
Ills  romplaint.  (1  (Jaim^s,  593.)  If  the  jury  find  more,  he  must 
relin<piisli  tlin  excess  ;  and  this  must  be  done  bi^fore  the  Justice 
renders  jiid^in'Mil.  (7  Wcind.  330.  4  John.  414.)  So,  where 
the  jury  find  dam;\ges  for  the  defendant,  where  he  is  entitled  to 


FILING  TRANSCRIPTS  THEREOF.  201 

none  ;  the  defendant  may  remit,  and  the  Justice  may  strike  out 
the  damages  found,  and  give  judgment  for  the  defendant  gen- 
erally. (4  John.  414.)  When  a  balance  is  found  in  favor  of  a 
party,  either  by  the  verdict  of  a  jury,  or  upon  a  hearing  before 
the  Justice  exceeding  the  sum  for  which  a  Justice  is  authorized 
to  give  judgment,  such  party  may  remit  and  release  the  excess, 
and  may  take  judgment  for  the  residue.  (2  R.  S.  343,  sec.  126. 
5  Hill,  76.) 

If  the  verdict  exceed  the  amount  claimed  in  the  complaint, 
the  plaintiff  may  remit  the  excess  and  take  judgment  for  the  sum 
demanded.     (5  Hill,  76.) 

The  plaintiff  cannot  recover  any  damages  except  those  that 
arose  before  the  commencement  of  the  suit.  Where,  however, 
a  duty  is  incurred  pending  the  suit,  incident  to,  or  growing  out 
of,  the  action  for  which  the  suit  is  brought,  and  no  satisfaction 
can  be  had  by  a  new  suit,  such  duty  must  be  included  in  the 
judgment  to  be  given  in  the  action  already  commenced.  Thus, 
in  an  action  on  contract,  for  principal  and  interest,  the  latter 
should  be  brought  down  to  the  time  of  the  judgment,  the  inter- 
est being  a  mere  accessary  to  the  principal,  for  which  no  sepa- 
rate action  will  lie.  (3  John.  229.)  But  when  a  new  action 
will  lie  for  any  duties  or  demands  arising  since  the  action 
brought,  they  cannot  be  included  in  the  first  suit. 

When  several  defendants  are  charged  in  the  same  action, 
with  a  joint  wrong,  and  all  are  found  guilty,  the  damages 
must  be  joint.  (6  J.  R.  199.)  In  actions  for  a  wrong,  however, 
the  Justice  or  jury  may  find  one  defendant  guilty  of  the  wrong 
at  one  time,  and  the  other  at  another ;  or  one  of  them  guilty 
of  part  of  the  wrong,  and  the  other  of  another  ;  or  some  guilty 
of  the  whole  wrong,  and  the  others  guilty  of  part  only  ;  in  which 
cases,  several  damages  are  to  be  assessed. 

8.   Costs. 

The  successful  party,  at  the  time  of  recovering  his  judg- 
ment, recovers  also,  as  a  necessary  incident  to  it,  the  costs  or 
expenses  of  suit.  If  the  plaintiff  be  found  indebted  to  the  de- 
fendant, or  the  defendant  to  the  plaintiff,  judgment  is  to  follow 
in  favor  of  the  prevailing  party  for  the  debt,  or  damages  and 
costs.     (2  R.  S.  343,  sec.  127.) 

The  only  difficulty  which  arises  in  making  up  the  costs  is  in 


202  OF  JUDGMENTS,  AND 

distingiiisliing  between  such  items  as  may  or  may  not  be  inclu- 
ded in  ihc  judgment. 

When  there  is  no  judgment  rendered  against  either  party, 
but  a  mere  discontinuance  of  proceedings,  eacli  party  pays  his 
own  costs. 

Costs  vohmtarily  made  by  the  party  against  whom  the  judg- 
ment is  rendered,  must  not  be  inchided  in  the  judgment.  (13 
J.  R.  350  and  460.  14  id.  369.  15  id.  195.  1  Cow.  111.) 
Thus,  when  judgment  is  rendered  in  favor  of  the  plaintiff, 
the  Justice  must  not  include  in  the  judgment  the  defendant's 
costs  for  subpoenas,  swearing  his  witnesses,  adjournments  ob- 
tained on  his  motion,  &c.  ;  and  on  the  other  hand,  the  Justice 
must  not  include,  in  a  judgment  in  favor  of  the  defendant,  the 
costs  of  the  summons,  constables'  fees,  or  other  costs  which  the 
plaintiff  has  vohmtarily  made  in  the  prosecution  of  his  suit. 

The  costs  of  a  venire,  however,  always  abide  the  event  of  a 
suit;  and  must  therefore  be  always  included  in  the  judgment. 
(18  J.  R.  131.) 

If  the  Justice  should,  through  mistake  or  otherwise,  errone- 
ously tax  items  which  do  not  properly  belong  in  the  judgment, 
the  judgment  cannot  for  that  reason  be  reversed  ;  neither  will 
the  judgment  be  reversed,  because  the  total  amount  of  costs  ex- 
ceeds five  dollars;  the  remedy  of  the  party  who  has  paid  them 
being  by  action  against  the  party  who  has  received  them,  in 
which  he  may  recover  the  amount  of  the  fees  improperly  al- 
lowed and  paid,  with  the  interest.  (2  R.  S.  352,  sec.  Ib8.  Jd. 
193,  sec.  230.     19  Wend.  551.) 

Double  Costs. 

In  some  instances,  double  and  treble  costs  are  allowed.  Dou- 
ble costs  arc  defined  to  be  the  amount  of  the  party's  costs,  and 
one  half  in  addition  ;  treble  costs  are  common  costs,  with  three- 
fourths  or  seventy-five  per  cent  in  addition.  (9  Wend.  443.) 
Double  costs  arc  pormitled  by  statute.  (2  R.  S.  512,  sec.  25.) 
1.  Inactions  against  public  oliicers  appointed  under  the  au- 
thority of  this  state,  or  elected  by  the  people;  or  against  any 
person  specially  .-ippninted  according  to  law,  to  execute  the  du- 
ties of  siu'h  public  oliif^cr,  for  or  concerning  any  act  done  by 
such  o(iic(!r  or  person,  by  \irtue  of  his  office,  or  for  or  concern- 
ing the  omission,  by  such  ofliccr  or  person,  to  do  any  act  which 
it  was  his  oiriciul  duty  to  perform. 


FILING  TRAM  SCRIPTS  THEREOF.  203 

2.  Ill  actions  against  any  other  person,  for  doing  any  act  by 
the  commandment  of  such  officers  or  persons,  or  in  their  aid 
and  assistance,  touching  the  duties  of  such  office  or  appoint- 
ment. 

3.  In  actions  against  any  person  for  taking  any  distress,  ma- 
king any  sale,  or  doing  any  other  act,  by  authority  of  any  sta- 
tute of  this  state. 

It  must  be  borne  in  mind  that  the  foregoing  sections  of  the 
statute  are  only  applicable  to  a  judgment  in  favor  of  the  defend- 
ant. 

A  party  sued  as  a  public  officer  is  entitled  to  double  costs  ; 
and  if  the  fact  of  his  being  so  sued  does  not  sufficiently  appear 
from  the  pleadings,  the  Justice  may,  before  rendering  judgment, 
inquire,  in  the  presence  of  the  parties,  and  ascertain  the  defend- 
ant's right  to  such  costs.     (19  Wend.  351,  352.) 

If  the  party  in  the  process,  for  acting  under  which  an  officer 
is  sued,  indemnify  the  officer,  or  assume  the  defence  of  the  suit, 
he,  and  not  the  officer,  will  be  entitled  to  double  costs.  (2  De- 
nio,  183.) 

Where  an  officer  is  sued  jointly  with  another,  and  they  plead 
jointly,  the  officer  is  entitled  to  single  costs  only,  although  judg- 
ment be  in  favor  of  both  ;  but  where  they  sever  in  their  defence, 
and  plead  separately,  the  officer,  in  case  judgment  is  in  his  favor, 
is  entitled  to  his  double  costs.     (2  Cow.  426.     6  J.  R.  109.) 

Fees  of  Officers  and  of  Witnesses  and  Jurors. 

The  following  are  the  fees  allowed  by  statute  : — (2  R.  S. 
359.) 

To  the  Justice. 

For  a  summons,  nine  cents ;  when  judgment  shall  be  ren- 
dered against  the  defendant,  no  more  than  two  summons  ;  and 
the  service  of  the  two  summons  shall  be  included  in  the  costs 
of  such  judgment. 

For  a  warrant,  twelve  and  a  half  cents. 

For  an  attachment  or  execution,  nineteen  cents. 

For  every  adjournment,  except  such  as  shall  be  made  by  the 
Justice  without  the  motion  of  either  party,  nine  cents. 

For  a  subpoena,  six  cents. 

For  administering  any  oath,  six  cents. 

For  filing  every  paper  required  to  be  filed  with  him,  three 


204  OF  JUDGMENTS,  AND 

cents ;  but  no  fee  shall  be  allowed  for  filing  any  written  decla- 
ration, plea,  or  other  written  pleading,  or  lor  filing  any  process 
issued  in  any  cause. 

For  a  venire,  nineteen  cents. 

For  swearing  a  jury,  twelve  and  a  half  cents. 

For  entering  a  judgment,  twenty-five  cents. 

For  every  bond  or  other  written  security  directed  to  be  taken 
by  any  of  the  provisions  of  this  title,  if  drafted  by  the  Justice, 
twenty-five  cents. 

For  making  a  return,  upon  an  appeal,  one  dollar.  (Code, 
sec.  371.) 

For  every  order  for  a  commission  to  examine  witnesses,  at- 
tending, settling,  and  certifying  interrogatories  to  be  annexed  to 
a  commission,  fifty  cents.     (Laws  1841,  p.  112.) 

To  one  or  more  commissioners  for  taking  and  returning  testi- 
mony, in  the  whole,  one  dollar. 

For  every  subpoena  or  oath,  six  cents. 

For  serving  subpoenas,  and  attendance  of  witnesses  before  the 
commissioners,  the  same  fees  as  are  now  allowed  by  law  in  Jus- 
ces'  Courts. 

For  postage  for  sending  and  returning  commission,  with  testi- 
mony, not  to  exceed  one  dollar. 

To  Witnesses. 
From  the  same  county,  subpoenaed  and  attending,  twelve  and 
a  half  cents ;  from   any  other  place   than   the   same  county, 
twenty-five  cents  for  every  day's  actual  attendance. 

To  Constables. 

For  serving  a  warrant  or  summons,  twelve  and  a  half  cents. 

For  a  copy  of  every  summons,  delivered  on  request,  or  left  at 
the  dwelMng  of  the  defendant,  in  his  absence,  nine  cents. 

For  serving  an  attachment,  fifty  cents  ;  for  a  copy  thereof, 
and  of  the  inventory  of  the  property  seized,  left  at  the  last  lesi- 
dcnce  of  the  defendant,  fifty  cents. 

For  serving  an  execution,  five  cents  for  every  dollar  collected 
to  the  amount  of  fifty  dollars,  and  two  and  a  half  cents  for  ev- 
ery dollar  collected  over  fifty  dollars. 

l-'or  every  mile,  going  only  more  than  one  mile,  when  serving 
a  suMiMioMs,  warrant,  attachment  or  execution,  six  cents  ;  to  be 
corri[)iiU'(l  from  tin;  place  of  abode  of  the  defendant,  or  where 
he  shall  be  found,  to  the  place  where  liic  precept  is  returnable. 


FILING  TRANSRIPTS  THEREOF.  gQS 

For  notifying  a  plaintiff  of  the  service  of  a  warrant,  twelve 
and  a  half  cents ;  and  for  going  to  the  plaintiff's  residence,  or 
where  such  notice  was  served,  six  cents  for  every  mile  more  than 
one  ;  summoning  a  jury,  fifty  cents. 

To  Jurors. 

For  attending  to  serve  as  such,  though  not  sworn,  six  cents 
each ; 

For  attending  and  trying  a  cause,  twelve  and  a  half  cents 
each ; 

To  each  juror  sworn  before  any  officer,  in  any  special  pro- 
ceeding allowed  by  law,  or  before  any  sheriff,  upon  any  writ  of 
inquiry,  or  to  try  any  claim  to  personal  property,  twelve  and  a 
half  cents.     (2  R.  S.  735.) 

To  a  constable  or  other  person,  for  serving  a  subposna,  twelve 
and  a  half  cents  for  each  witness  served ;  but  no  allowance 
shall  be  made  in  any  judgment,  for  service  upon  more  than  four 
witnesses  in  any  cause. 

The  same  fees  and  no  others,  shall  be  allowed  to  sheriffs,  for 
seiTing  executions  issued  upon  the  judgment  of  a  Justice,  as 
are  allowed  to  constables  in  like  cases.     (Id  .360,  sec.  235.) 

Fees  of  Justices  of  the  Peace,  in  Proceedings  before  them,  not 
provided  for  in  the  foregoing  Act.     (Id.  728,  sec.  39.) 

For  a  warrant  for  the  apprehension  of  any  person  charged 
with  any  violation  of  the  laws,  concerning  the  internal  police 
of  the  state,  or  with  being  the  father  of  a  bastard,  nineteen 
cents. 

Endorsing  any  such  warrant,  issued  from  another  county, 
twelve  and  a  half  cents  ; 

Summons  for  any  offence  relating  to  the  internal  police  of  the 
state,  or  in  case  of  any  special  proceeding  to  recover  the  pos- 
session of  land,  or  otherwise,  twenty-five  cents  ; 

Drawing,  signing  and  depositing  with  the  clerk  of  the  county, 
a  record  of  conviction,  thirty-seven  and  a  half  cents  ; 

An  execution  upon  any  conviction  before  him,  nineteen  cents ; 

Drawing,  copying  and  certifying  a  bond  of  recognizance,  and 
filing  the  same  with  the  county  clerk,  twenty-five  cents ; 

Warrant  of  commitment  for  any  cause,  nineteen  cents  ; 

Every  subpoena,  six  cents; 


206  OF  JUDGMENTS,  AND 

For  a  precept  to  summon  a  jury,  thirty  seven  and  a  half 
cents  ; 

Swearing  any  jury,  twenty-five  cents  ; 

Hearing  the  matter  concerning  which  a  jury  is  summoned, 
fifty  cents ; 

Receiving  ond  entering  their  verdict,  twelve  and  a  half  cents; 

For  taking  and  certifying  the  acknowledgment  of  any  instru- 
ment, which  is  required  to  he  acknowledged,  before  a  Justice, 
twenty-five  cents. 

Ever}^  additional  person,  twelve  and  a  half  cents. 

Every  oath,  six  cents  ; 

For  a  view  of  premises  alleged  to  be  deserted,  fifty  cents. 

Fees  of  Constables,  for  Services  in  special  proceedings  in  Civil 
Cases  not  otherwise  provided  for.     (2  R.  S.  738,  sec.  56.) 

Serving  summons,  twelve  and  a  half  cents  ; 

Serving  a  warrant,  nineteen  cents  ; 

Mileage  for  going  only,  for  each  mile,  six  cents ; 

Summoning  and  swearing  appraisers,  and  taking  the  ap- 
praisement, fifty  cents ;  and  twenty-five  cents  to  each  of  the 
appraisers  ; 

Advertising  and  selling  any  property  distrained  for  rent,  or 
doing  damage  or  levying  any  fine,  penalty  or  sum,  pursuant  to 
any  warrant,  the  same  fees  as  are  allowed  for  similar  services 
on  executions  from  Justices'  Court ; 

Arresting  and  committing  any  person  pursuant  to  process, 
fifty  cents  ;  and  mileage  for  going  only,  six  cents. 

And  for  any  services  not  herein  provided  for,  which  may  be 
rendered  by  a  constable,  the  same  fees  as  are  allowed  by  law 
to  sherifls,  for  similar  services,  among  which  arc  the  following: 

Putting  any  person  entitled,  into  the  possession  of  premises, 
and  removing  the  tenant,  one  dollar  and  twenty-five  cents  ; 
[and  the  same  travelling  fees  as  upon  an  execution.] 

SuiMinoniiig  a,  jiny  to  try  the  title  to  any  personal  property, 
attending  such  jury,  ^fcc,  one  dollar  and  fifty  cents. 

Sinumoniug  a  jury  pursuant  to  any  precept  or  summons  o 
any  ofliccr  in  any  special  proceeding,  one  dollar;  and  for  at- 
tending .su<:h  jury  when  required,  fifty  cents. 


FILING  TRANSCRIPTS  THEREOF.  207 

An  officer  is  not  entitled  to  fees  for  travelling  to  serve  process 
unless  the  service  is  actually  made.     (1  Denio,  G58.) 


The  following  fees  and  costs  are  allowed  on  appeals  from 
Justices'  Courts.     (Code,  sec.  371.) 

To  the  appellant,  on  reversal :  if  upon  affidavits,  ten  dollars  ; 
if  upon  a  return,  fifteen  dollars. 

To  the  defendant,  on  affirmance  :  if  upon  affidavit,  seven 
dollars ;  if  upon  a  return,  seven  dollars. 

To  a  Justice  of  the  Peace,  for  his  return,  one  dollar. 

If  the  judgment  appealed  from,  he  reversed  in  part,  and  af- 
firmed as  to  the  residue,  the  amount  of  costs  allowed  to  either 
party,  shall  be  such  sum  as  the  appellate  court  may  award,  not 
exceeding  ten  dollars. 


For  every  day's  attendance  in  holding  the  Courts  of  Oyer  and 
Terminer  and  Sessions  in  any  county,  the  Justices  of  the  Peace 
designated  for  that  purpose,  pursuant  to  law,  shall  receive  the 
sum  of  two  dollars  each,  and  six  cents  per  mile,  in  going  and 
returning  from  court ;  such  compensation  to  be  a  county  charge, 
and  paid  by  the  county  treasurer,  on  the  production  of  the  cer- 
tificate of  the  clerk  of  the  court  specifyhig  the  number  of  days 
such  Justices  shall  have  attended,  and  the  distance  they  shall 
have  travelled  respectively,  and  but  one  allowance  of  travel 
shall  be  made  for  any  term  of  said  courts ;  and  the  said  Jus- 
tices for  all  services  in  cases  of  appeals  from  the  decisions  of 
commissioners  of  highways,  shall  receive  the  same  rate  of  com- 
pensation as  above  provided,  for  attending  courts.  (Laws  of 
1847,  ch.  277,  sec.  6.) 


If  judgment  be  rendered  by  any  Justice  for  a  greater  amount 
of  costs  than  is  allowed  by  law,  or  for  any  item  of  costs,  or 
fees,  improperly,  and  the  same  be  collected,  the  person  paying 
the  same,  may,  notwithstanding  such  judgment,  recover  of  the 
party  who  shall  have  received  such  costs,  or  fees  the  amount 
thereof,  with  interest. 


CHAPTER    XI. 


EXECUTION. 


The  subjects  of  this  chapter,  are  the  following: 

1.  Definition  and  nature  of  Execution,  and  how  and  when 
prepared  and  issued, 

2.  Endorsement  on  Execution,  when  and  how  made. 

3.  Renewal  of  Execution. 

4.  Of  issunig  a  further  Execution. 

5.  When  Party  may  be  Arrested  on  Execution. 

6.  Of  the  Service  and  Return  of  an  Execution. 

7.  Execution  where  a  Transcript  of  the  Judgment  is  Filed. 

8.  Of  the  Liability  of  the  Constable  and  his  Sureties  on 
Execution. 

Judgment  having  been  rendered,  it  only  remains  for  the  pre- 
vailing party  to  put  it  in  force.  This  is  effected  by  execution  ; 
by  means  of  which  the  complaining  party,  if  successful,  is  put 
in  possession  of  the  right  withheld,  or  of  competent  redress  in 
the  shape  of  damages,  for  the  injury  committed  ;  or,  if  unsuc- 
cessful, is  compelled  to  pay  his  adversary's  costs  of  suit. 

The  execution  has  been  termed  by  some  of  the  older  writers, 
"  The  fruit  and  end  of  the  law."  In  a  Justices'  Court,  it  is 
issued  by  the  Justice  before  whom  judgment  was  obtained, 
and  directed  to  any  constable  within  the  same  county,  com- 
manding him  to  levy  the  debt  or  damages,  and  costs,  of  the 
goods  and  chattels  of  the  person  against  whom  the  same  shall 
be  issued,  (excepting  such  goods  and  chattels  as  arc  by  law 
exempt  from  execution,)  and  to  bring  the  money,  at  a  certain 
time  and  place  therein  to  be  mentioned,  before  such  Justice,  to 
render  (o  the  party  who  recovered  the  same.  The  constable  is 
furthermore  recpiircd  to  moke  his  return  within  a  given  number 
of  days  from  the  date  of  the  execution. 

Every  execution  must  be  entirely  filled  up.  having  no  blank 
in  the  dato,  or  otherwise,  at  the  time  of  its  deHvcry  to  the  con- 
stable ;  it  must  be.  dated  when  it  was  actually  issued,  and  be 
made  returnable,  in  all  cases,  in  sixty  days  from  date.     If  the 


EXECUTION. 


209 


judgment  be  docketed  with  the  county  clerk,  it  must  be  issued 
by  him  to  the  sheriff  of  the  county  ;  and  it  will  then  have  the 
same  effect,  and  must  be  executed  in  the  same  manner,  as  other 
executions  and  judgments  of  the  county  court,  except  that 
where  the  judgment  is  for  a  less  sum  than  twenty-five  dollars, 
it  cannot  be  enforced  against  real  property.  (Code,  sees.  63,  64. 
2  R.  S.  344,  sec.  129.) 

FORM    OP    AN    EXECUTION. 

Toum  of  Oxford,  ss. — 
To  any  constable  within  the  county  of  Chenango,  Greeting  : 

Whereas,  judgment  against  Richard  Roe  for  the  sum  of  fifteen 
dollars  damages,  (or  debt,)  and  three  dollars  costs,  in  favor  of 
John  Doe,  was  rendered  by  and  before  me,  the  undernamed 
Justice  of  the  Peace  of  Oxford  aforesaid,  on  the  first  day  of 
May  inst.,  at  Oxford  aforesaid  :  You  are,  therefore,  hereby  com- 
manded, in  the  name  of  the  people  of  the  state  of  New  York, 
to  levy  the  said  damages,  (or  debt,)  and  costs,  of  the  goods  and 
chattels  of  the  said  Richard  Roe,  (excepting  such  goods  and 
chattels  as  are  by  law  exempt  froai  execution,)  and  bring  the 
money  in  sixty  days  from  the  date  hereof,  before  me  at  my 
ofiice  in  Oxford,  in  said  county,  to  render  to  the  said  John  Doe, 
for  his  damages  and  costs.  And  make  return  in  sixty  days 
from  the  date  hereof,  according  to  law.  Given  under  my  hand 
at  Oxford,  May  2d,  1849. 

David  Long,  Justice. 

By  the  Code,  execution  may  be  issued  on  a  judgment  ren- 
dered in  a  Justice's  Court,  at  any  time  within  five  years  from 
the  rendering  of  the  same.  As  this  clause  is  without  qualifi- 
cation, it  will  be  seen  that  execution  from  Justices'  Courts  may 
now,  in  all  cases,  issue  immediately.*     (Code,  sec.  64.) 


*  Under  the  Revised  Statutes,  upon  the  rendering  of  a  judgment  against  any 
person,  who  was  not  at  tlie  time  a  freeholder  of  the  county  where  the  Justice  re- 
sided, nor  an  inhabitant  of  such  county  having  a  family,  execution  might  issue 
immediately  ;  but  the  Justice  was  required  to  demand  proof  from  the  party  desiring 
the  execution,  on  his  oath,  or  otherwise,  of  the  fact  entitling  him  thereto.  This 
proof  was  required,  in  all  cases,  unless  it  had  been  previously  given,  in  the  progress 
of  the  cause,  as  might  have  been  done  at  the  issuing  of  process. 

If  the  judgment  was  against  a  freeholder  of  the  county,  or  an  inhabitant  of  the 

14 


210  EXECUTION. 

When  a  judgment  is  rendered  npon  any  contract,  or  upon  a 
prior  judgment,  a  direction  should  be  endorsed  upon  the  execu- 


county  having  a  family,  execution  might  not,  as  a  general  rule,  be  issued  until  the 
expiration  of  t'lirty  days,  if  the  amount  recovered,  exclusive  of  costs,  did  not  exceed 
twenty-five  dollars, — nor  until  the  expiration  of  ninety  days,  if  the  amount  reco- 
vered, exclusive  of  costs,  exceeded  twenty-five  dollars.  But  this  rule  had  these 
qualifications : — 

1.  The  execution  might  sooner  issue,  by  the  consent,  in  writing,  of  the  party 
against  whom  the  judgment  was  obtained.  This  consent  might  be  drawn  and 
signed  upon  the  Justice's  docket,  under  the  title  of  the  cause,  thus  : — "  I  consent 
that  executiou  may  be  issued  upon  the  judgment  in  this  cause,  forthwith,"  {or  as 
the  case  might  be.)     "  Dated  June  15i.h,  1849.     Richard  Roe,  defendant." 

2.  Execution  might  be  issued  immediately,  if  the  party  obtaining  the  judgment 
made  it  appear,  by  his  own  oath  or  other  competent  testimony,  to  the  satisfaction 
of  the  Justice,  that  such  party  would  be  in  danger  of  losing  the  debt  or  damages 
recovered  by  him,  if  the  execution  were  delayed.  Application  for  such  executiou 
might  be  made  either  be/ore  or  at  the  time  of  rendering  the  judgment  ;  or  if  rea- 
sonable notice  was  given  to  the  adverse  party,  of  the  intention  to  apply  for  such 
execution,  the  application  might  bo  made  at  any  time  alter  the  judgment  was 
rendered. 

The  application  for  an  execution,  if  made  before,  or  at  the  time  of  rendering 
judgment,  was  general!}' made  in  the  hearing  of  the  opposite  party,  if  present ; 
though  this  was  not  necessary.  And  where  an  application  was  made  at  the  close 
of  the  trial,  it  was  unnecessary  to  make  the  oath  on  the  spot,  whether  the  defen- 
dant appeared  in  the  suit  or  not.  It  was  enough,  if  the  application  were  made  at 
the  proper  time  ;  the  oath  might  be  administered  afterwards,  without  further  notice. 

The  reason  of  requiring  notice,  was  to  afibrd  the  party  an  opportunity  to  stay 
the  execution,  by  giving  security.  What  should  be  deemi-d  u  /  /  <  sonahle  notice 
was  left  to  the  discretion  of  the  Justice,  under  consideration  of  the  circumstances 
of  each  case. 

It  was  held,  that  notice  given  by  the  plaintiff,  at  the  clo.'e  of  the  trial,  and  be- 
fore the  rendering  of  judgment,  in  the  hearing  of  the  defendant's  attorney,  that  he 
would  apply  for  an  immediate  execution,  should  judgment  pass  in  his  favor,  was 
sufficient  to  authorize  the  issuing  of  the  execution  on  the  oath  of  danger. 

So,  a  written  notice,  given  to  the  defendant,  the  day  next  after  the  rendering  of 
the  judgment,  and  three  days  before  the  issuing  of  the  execution,  of  an  intention 
to  apply  for  an  execution,  was  sufficient,  although  it  stated  neither  time  nor  place 
when  or  where,  the  application  would  bo  made. 

The  statute  did  not  require  that  the  notice  should  bo  in  writing.  For  greater 
certainty  and  security,  however,  a  written  notice  was  usually  served,  and  a  copy 
of  it,  with  an  affidavit  of  service  filed  wilii  the  Justice. 

rORM    OF   NOTICE. 

/n  JiJHtice'.s  Covit,  l/ffnir  David  Long,  Justice. 
John   Dor,  x 

a^'aitmt  / 

RiCIIAUK    IJoK.  ' 

Sir — Take  notice,  that  I  iiiti-nd  to  ap|>ly  to  tho  above-named  Justice,  to-morrow, 


EXECUTION. 


211 


tion  to  collect  interest  from  the  time  judgment  was  rendered, 
until  paid. 

FORM    OF    ENDORSEMENT, 

"Collect  Damages,        .        .         $20  00 
"        Costs,  .         .  3  50 


$23  50 


Interest  from  February  1st,  1849,  until  paid,  and  your  fees. 

David  Long,  Justice." 


at  two  o'clock  in  the  afternoon,  at  his  office,  in  Oxford,  for  the  immediate  issuing 
of  execution  upon  the  judgment  iu  the  above  cause.     Dated  May  1st,  1849. 

John  Doe,  Plaintiff. 
To  Richard  Roe,  the  above  named  defendant. 

The  person  serving  the  foregoing  notice,  (and  eitiier  the  party,  or  any  other  per- 
son might  serve  it,)  delivered  a  copy  to  the  party  to  be  notified,  and  retained  a  copy. 
On  the  copy  retained,  an  affidavit  of  service  was  endorsed  thus  : 

"  Town  of  Oxford,  ss  : — John  Doe,  being  duly  sworn,  says,  that  on  the  1st  day 
of  May,  1849,  he  personally  served  the  within  notice,  by  dehvering  a  copy  thereof 
to  the  within  named  Richard  Roe. 

John  Doe." 
Subscribed  and  sworn  this  1st  day  of  May,  1849,  before  me, 
David  Long,  Justice. 

In  making  the  oath  of  danger,  for  the  immediate  issuing  of  execution,  it  was  not 
enough  for  the  party  or  witness,  to  swear  generally  to  the  mere  apprehension  of 
danger;  he  was  required  to  state  facts  and  circumstances,  sufficient  to  satisfy  the 
Justice  that  he  had  good  grounds  for  his  apprehension. 

The  party  against  whom  any  judgment  might  have  been  recovered,  could  stay 
the  issuing  of  execution  thereon,  until  the  regular  time,  by  giving  a  bond  to  th« 
party  in  whose  favor  judgment  was  obtained,  in  such  penalty  and  with  such  secu- 
rity, as  the  Justice  might  approve,  conditioned  for  the  payrr:eut  of  the  money  re- 
covered, and  the  costs,  with  interest,  at  or  before  the  expiration  of  ninety  days  from 
the  time  of  rendering  such  judgment,  if  such  money  exceeded  twenty-five  dollars, 
e.KcIusive  of  costs  ;  and  at  the  expiration  of  thirty  days,  from  the  rendering  of  judg- 
ment, if  such  money  did  not  exceed  twenty-five  dollars,  exclusive  of  costs.  If 
such  bond  were  left  with  the  Justice,  for  the  use  of  the  party  to  whom  it  was  given, 
at  the  time  of  rendering  judgment,  or  before  the  actual  issuing  of  execution  thereon, 
no  execution  could  be  issued  on  such  judgment,  until  the  regular  time. 

FORM  OF  BOND  TO  STAY  EXECUTION. 

Know  all  men,  by  these  presents,  that  we,  Richard  Roo  and  John  Stiles,  are 
held  and  firmly  bound,  unto  John  Doe,  in  the  sura  of  one  hundred  dollars ;  to  be 
paid  to  the  said  John  Doe,  or  to  his  certain  attorney,  executors,  administrators,  or 


212 


EXECUTION. 


AYhen  a  judgment  is  obtained  against  joint  debtors,  upon 
process  which  was  not  served  upon  all  the  defendants,  execution 
may  be  issued  in  form  against  all ;  but  the  Justice  is  required 
to  endorse  on  the  execution  the  names  of  such  of  the  defend- 
ants, who  did  not  appear  in  the  suit,  as  were  not  served  with 
process.     (2  R.  S.  346,  sec.  141.) 

The  statute  requires  only  an  endorsement  of  the  names  ;  but 
it  would  be  well  to  have  a  more  specific  form,  to  prevent  the 
constable  from  being  misled,  thus  : 

"  The  within  named  Richard  Roe,  was  not  served  with  pro- 
cess, and  did  not  appear  in  the  within  named  suit." 

Such  execution  cannot  be  levied  upon  the  sole  property  of 
any  such  defendant.  But  it  may  be  collected  of  the  personal 
property  of  any  such  defendant,  owned  by  him  as  a  partner  of 
the  other  defendants,  appearing  or  served  with  process,  or  with 
any  of  them.     (Id.  sec.  142.) 

An  action  lies  against  a  party  who  wrongfully  and  wilfully 
sues  out  an  execution  on  a  judgment  which  he  knows  to  have 
been  satisfied,  whereby  the  property  of  the  defendant  is  taken 
and  sold  ;  and  to  support  the  action  it  is  unnecessary  to  allege 
and  prove  actual  mahce.     (7  Wend.  301.) 

If  an  execution  be  returned  in  part  or  wholly  unsatisfied,  it 
may,  from  time  to  time,  be  renewed,  or  a  new  execution  issued 
to  collect  the  residue.  To  renew  an  execution,  the  Justice  must 
make  an  endorsement  to  that  effect,  signed  by  him,  and  dated 
when  made.     If  part  of  the  same  has  been  satificd,  the  cndorse- 


assigns  ;  to  whicli  payment,  well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs, 
executors    and    administrators,  jointly    and  severa      1  ly    by   these   presents. 

Sealed  with  our  seals,  and  dated  this  1st  day  of  May,  1849. 

Whereas,  on  this  1st  day  of  May,  1849,  a  judgment  was  recovered  before  David 
Long,  Esquire,  one  of  the  Justices  of  the  Peace  of  the  county  of  Clianango,  by  the 
said  John  Doe,  against  the  above  bounden  Richard  Roe,  for  fifteen  dollars  dama- 
ges, (or  debt,)  and  three  dollars  costs.  Now,  therefore,  the  condition  of  this  obli- 
gation iH  Huch,  that  if  the  above  bounden  Richard  Roe  shall  well  and  truly  pay  the 
said  damages  (or  debt)  and  costs,  ho  recovered,  with  interest,  at  or  before  the  expi- 
ration of  thirty  dayH  from  the  time  of  tho  rendition  of  the  said  judgment,  then 
this  obligation  to  bo  void,  otherwise  of  force. 

'  Ricii.\Rn  Roe,  [l.  s.] 

John  Stiles,     [l.  b.] 
Scaled  :\w\  delivered  in  pre.'cncc  of,  ;ind  penally 
and  surety  approve!  by, 

David  Lono,  Justice. 


EXECUTION. 


213 


ment  of  renewal  must  express  the  amount  due.  Every  such 
endorsement  will  be  deemed  to  renew  the  execution  in  full 
force,  in  all  respects,  for  sixty  days.  (2  R.  S.  347,  sec.  145. 
12  Wend.  14G.) 

It  has  been  held,  that  to  authorize  a  renewal  of  the  execution 
a  formal  written  return,  that  no  goods,  &c.,  can  be  found,  is  not 
necessary,  but  that  verbal  information  of  the  fact,  given  to  the 
Justice  by  the  constable,  would  be  sufficient.  (12  J.  R.  320.) 
It  would,  however,  be  much  better  for  the  Justice,  before  re- 
newing the  execution,  to  require  the  constable  to  endorse  a 
return  thereon,  in  order  that  he  may  know  judicially  whether 
any  thing  has,  or  has  not,  been  collected  on  the  execution  ;  he 
would  thus  always  have  it  in  his  power  to  justify  the  act  of 
renewal,  by  proper  and  competent  testimony.     (6  Wend.  367.) 

FORM    OF    RENEWAL. 

"  The  within  execution  is  renewed  this  1st  day  of  March, 
1849,  for  the  full  amount. 

David  Long,  Justice." 

Or,  "The  within  execution  is  renewed  this  1st  day  of  March, 
1849,  to  collect  the  sum  of  twenty  dollars,  and  interest  from 
January  5th,  1849,  which  remain  due." 

An  execution  from  a  Justices'  Court  may  be  renewed  by  the 
Justice  while  it  remains  unsatisfied,  even  though  sufficient  pro- 
perty to  satisfy  it  has  been  levied  on,  and  is  held  under  the  levy, 
when  there  is  not  time  enough  remaining  to  advertise  and  sell. 
(1  Denio,  574.) 

Any  Justice  before  whom  any  judgment  shall  have  been 
entered,  and  whose  term  of  office  shall  have  expired,  may  issue 
or  renew  executions  on  any  such  judgment  after  the  expiration 
of  his  said  office,  at  any  time  within  six  months  from  the  time 
said  judgment  shall  have  been  rendered.  If  he  is  re-elected, 
and  duly  qualified,  he  may  issue  executions  on  judgments  pre- 
viously rendered  by  him,  at  any  time  within  two  years  from  the 
rendition  of  the  judgments.     (2  R.  S.  366,  sec.  270.) 

Instead  of  renewing  the  execution,  the  Justice  may,  where  it 
is  returned  unsatisfied  in  whole  or  in  part,  issue  a  further  exe- 
cution for  the  amount  remaining  due.     (2  R.  S.  347,  sec.  147.) 

Verbal  information  is  insufficient  to  authorize  the  issuing  of  a 


214  EXECUTION. 

further  execution  ;  (8  J.  R.  337.  6  Wend.  3G7.  3  id.  382.  5 
Cow.  417 ;)  and  in  one  case,  where  a  Justice  issued  a  second 
execution  after  the  first  was  satisfied,  it  was  held  that  he  was  a 
trespasser,  and  that  it  was  no  excuse  for  him  that  the  second 
execution  was  issued  on  the  false  representation  of  the  plaintiff 
that  the  first  was  lost,  (6  Wend.  367.)  A  Justice  should,  in 
no  case,  issue  a  further  execution  until  the  first  is  duly  returned. 

The  further  execution  may  be  in  form  the  same  as  the  one 
first  issued,  directing  the  collecting  of  the  full  amount  of  the 
judgment,  and,  in  case  any  thing  was  collected  upon  the  prior 
execution,  the  Justice  should,  by  way  of  endorsement,  state  the 
amount  remaining  due. 

In  an  action  for  a  ivrong  committed  by  any  person,  and  in 
all  actions  which  do  not  arise  upon  contract,  express  or  implied, 
and  in  actions  against  public  officers  for  monies  collected  by 
them  in  their  official  capacity,  or  for  neglect  of  duty,  when 
judgment  is  obtained  against  either  party,  either  for  damages  or 
costs,  the  execution  must  be  issued  against  the  body  as  well  as 
the  property  of  the  party  against  whom  such  judgment  is  ob- 
tained, in  the  same  manner  as  previous  to  the  Non-Imprison- 
ment Act, 

The  form  of  an  execution  against  the  body  of  a  defendant, 
is  the  same  as  the  form  already  given,  with  the  following 
addition  : 

"  xind  if  no  goods  or  chattels  can  be  found,  or  not  sufficient 
to  satisfy  this  execution,  you  are  further  commanded  to  take  the 
body  of  the  said  Richard  Roc,  and  convey  him  to  the  common 
jail  of  said  county,  there  to  remain  until  this  execution  shall  be 
paid  and  satisfied,  or  until  discharged  by  law  ;  and  make  re- 
turn in  sixty  days  from  the  date  hereof,  according  to  law." 

If  any  person  taken  in  execution  against  his  body  die  while 
so  charged,  new  executions  may  be  issued  against  the  goods, 
chattels,  lands,  and  tenements  of  the  deceased,  in  the  same 
manner  as  if  he  had  never  been  charged  in  execution.  (2  R. 
S.  405,  sec.  30.) 

When  a  recovery  is  had  for  any  penalty  or  forfeiture  incurred 
for  a  violation  of  the  provisions  of  the  statute  entitled,  "  Of 
exci.se,  and  tb(!  ifgulation  of  taverns  and  groceries,"  or  of  the 
act  relating  to  fishciics,  the  Justice  is  required  to  endorse  upon 
t^ie  exf;culion,  \.\\v,  (;aus(!  for  which  th(!  judgment  was  rendered  ; 
and  if  the  defendant  is  connnilled  to  jail  for  want  of  goods  and 


EXECUTION. 


215 


chattels  to  satisfy  the  execution,  lie  is  to  be  confined  without 
being  allowed  the  liberties  of  the  jail,  for  a  term  not  exceeding 
sixty  days.     (Id,  346,  sec.  143.) 

The  execution  may  be  issued  in  common  form.  The  required 
endorsement  may  be  more  briefly  and  explicitly  made,  by  a 
reference  to  the  section  of  the  statute  upon  which  the  prosecu- 
tion was  founded. 

Of  the  Service  and  Return  of  an  Execution. 

This  process  must  be  executed  by  a  constable  of  the  county 
where  the  Justice  resides.  The  constable  cannot  depute  a  third 
person  to  act  for  him,  but  must  execute  it  in  his  own  proper  per- 
son.    (2  R.  S.  368,  sec.  285.) 

The  Justice,  however,  whenever  he  shall  deem  it  expedient, 
on  the  request  of  a  party,  may,  by  written  authority  endorsed  on 
the  process,  empower  any  person,  being  of  lawful  age,  (that  is, 
of  the  age  of  twenty-one  years.)  and  not  a  party  in  interest  in 
the  suit,  to  execute  the  same.  (Id.  2S3.)  The  person  so  em- 
powered will  possess  all  the  authority  of  a  constable,  in  rela- 
tion to  the  execution  of  the  process,  and  be  subject  to  the  same 
obhgations,  but  cannot  receive  any  fee  or  reward  for  his  ser- 
vices.    (Id.  284.) 

FORM    OF    AUTHORITY  TO    BE    ENDORSED    ON    THE    EXECUTION. 

Chenango  County^  ss. — On  the  request  of  the  within  named 
plaintiff,  I  adjudge  it  expedient  to  empower  some  proper  person 
to  -execute  the  within  process  ;  and  I  therefore  empower  John 
Smith,  being  of  lawful  age,  and  not  a  party  in  interest  in  the 
suit,  to  execute  the  same.     May  ist,  1849. 

David  Long,  Justice. 

Upon  the  receipt  of  an  execution,  the  constable  must  endorse 
thereon  the  year,  month,  day,  and  hour  of  the  day  when  he  re- 
ceives the  same.     (2  R.  S.  462,  sec.  10.) 

It  is  the  duty  of  the  constable  to  make,  within  a  reasonable 
time,  search  for  goods  and  chattels,  as  directed  by  the  execu- 
tion ;  but  if,  after  a  diligent  inquiry,  no  goods  can  be  found, 
he  is  blameless,  though  there  be  in  fact  goods  and  chattels  suf- 
ficient.    (1  Conn.  R.  387.) 

Although  a  constable  will  be  justified  in  serving  an  execution 


216  EXECUTION. 

regular  upon  its  face,  whether  the  Justice  has  or  has  not,  in  fact, 
jurisdiction  in  the  particular  case,  yet  he  is  not  bound  to  do  so, 
and  consequently  is  not,  in  such  case,  liable  for  neglecting  to 
proceed  under  the  execution.     (8  Mass.  R.  79, 85.) 

The  execution  must  be  levied  before  the  return  day.  A  con- 
stable cannot  levy  upon  or  sell  any  property  upon  any  execu- 
tion after  the  time  limited  for  its  return,  unless  such  execution 
shall  have  been  renewed  ;  nor  can  he  do  any  act  under  a  re- 
newed execution,  after  the  expiration  of  the  time  or  times  for 
which  the  same  may  have  been  renewed.  (2  R.  S.  349,  sec. 
162.) 

In  making  a  levy,  the  constable  need  not  remove  the  pro- 
perty ;  nor  is  it  necessary  that  an  assistant  of  the  officer  should 
be  left  in  possession  of  the  goods.  The  goods  should  be  brought 
within  view  of  the  constable,  and  be  subject  to  his  control ;  and 
it  is  proper,  if  not  necessary,  that  an  inventory  should  be  taken. 
The  officer  should  assert  his  title  to  the  goods  by  virtue  of  the 
execution,  and  his  acts  in  the  assertion  of  his  right,  and  the 
divesting  of  the  possession  of  the  defendant,  should  be  of  such 
a  character  as  would  subject  him  to  an  action  as  a  trespasser, 
unless  protected  by  the  execution. 

The  constable  should  be  careful,  on  the  one  hand,  not  to  seize 
an  unreasonable  quantity  of  goods,  and  on  the  other  to  take  suf- 
ficient to  raise  the  money  at  an  ordinary  public  sale.  For  if 
sufficient  goods  to  satisfy  an  execution  be  once  taken,  the  debtor 
is  discharged,  even  if  the  officer  waste  the  goods  or  misapply 
the  money.     (12  J.  R.  207.     7  Cow.  13.) 

The  property  liable  to  be  taken  upon  a  Justice's  execution  is 
sometimes  of  difficult  determination.  The  following  points 
seem  to  be  settled : — 

The  term  "goods  and  chattels"  means  personal  and  movable 
goods,  such  as  may  be  taken  into  custody,  and  not  such  as  are 
immovable,  and  partake  of  the  freehold.  A  leasehold  property, 
or  term  for  years,  cannot  therefore  be  sold  under  a  Justice's  exe- 
cution. The  constable  may  seize  and  sell  growing  crops  of 
wheat,  corn,  .-md  other  grain  or  roots  which  are  the  fruits  of  an- 
nual labor — but  not  grass,  trees,  (fcc,  which  are  the  natural  pro- 
ductions of  the  soil.  (19  J.  R.  73.  2  id.  418.  9  id.  108.) 
Wlicn,  however,  grass  is  owned  by  one  who  does  not  also  own 
the  land,  it  is  pcrsmud  yioiicrty^  and  may  be  sold  as  such. 

lie  may  also  lake  spinning  or  carding  machinery,  a  bark  mil), 


EXECUTION.  217 

or  any  other  chattel  set  up  for  the  coiiveinence  of  a  trade,  and 
not  permanently  attached  to  the  freehold.  So  also  he  may,  as  a 
general  rule,  fake  such  articles  set  up  in  a  house  for  use  or  orna- 
ment as  arc  placed  with  a  view  to  severance  and  removal. 

Between  landlord  and  tenant,  the  claim  to  have  articles  con- 
sidered as  personal  property  is  received  with  the  greatest  lati- 
tude. Many  articles  which  would  be  considered  personal  chat- 
tels as  between  landlord  and  tenant,  would  be  deemed  fixtures 
as  between  individuals  standing  in  a  different  relation  to  each 
other.  It  has  been  held  that  a  tenant  may  remove  all  chimney- 
pieces  and  wainscot  put  up  by  himself.  So  of  beds  fastened  to 
the  ceiling,  even  where  they  are  nailed.  So  he  may  remove  al^ 
such  things  put  up  him  as  are  necessary  for  trade,  such  as  brew- 
ing utensils,  furnaces,  coppers^  fire  engines,  cider  mills,  (fcc,  (fcc, 
which  he  has  erected,  and  by  which  he  not  only  enjoys  the 
profit  of  the  estate,  but  carries  on  a  species  of  trade.  (2  Cow. 
Tr.  1049.) 

For  many  purposes,  money  is  included  within  the  term  goods 
and  chattels  ;  and  on  executions  against  the  property  of  a  de- 
fendant, the  officer  may  levy  upon  any  current  gold  or  silver 
coin  belonging  to  such  defendant,  and  pay  and  return  the 
same  as  so  much  money,  without  a  sale.  (  R.  S.  464,  sec.  19.) 
He  may  also  levy  upon  and  sell  any  bills  or  other  evidences  of 
debt  issued  by  any  monied  corporation,  or  by  the  government  of 
the  United  States,  and  circulated  as  money.     (Id.  sec.  20.) 

Where  goods  or  chattels  are  pledged  for  the  payment  of  mo- 
ney, or  the  performance  of  an  agreement,  the  right  and  interest 
in  such  goods  of  the  person  making  the  pledge  may  be  sold  on 
execution  against  him  ;  and  the  purchaser  will  acquire  all  such 
right  and  interest,  and  be  entitled  to  possession  of  the  goods,  on 
complying  with  the  conditions  of  the  pledge.     (Id.  sec.  21.) 

The  constable  cannot  break  the  outer  door  of  a  dwelling- 
house  to  serve  an  execution  ;  but  if  he  find  the  outer  door  open, 
he  may  break  an  inner  door.  He  may,  however,  break  open  a 
store,  warehouse,  barn  or  other  out-house  not  annexed  to,  or 
forming  part  of  a  dwelling  house,  and  being  uninhabited,  or 
trunks,  boxes,  <fcc.,  to  serve  an  execution.  So  where  a  man  lets 
his  house,  reserving  an  inner  room,  an  officer  may  break  the 
door  of  such  inner  room  to  serve  process.  (5  J.  R.  352.  4  Hill, 
487.     5  J.  R.  .389.) 

The  following  property,  when  owned  by  any  person  being  a 


218  EXECUTION. 

householder,  shall  be  exempt  from  levy  and  sale  under  any  exe- 
cution ;  and  such  articles  thereof  as  are  movable  shall  cominue 
so  exempt  while  the  family  of  such  person,  or  any  of  them, 
may  be  removing  from  one  place  of  residence  to  another.  (2 
R.  S.  350,  sec.  170.     18  J.  R.  400.) 

1.  All  spinning  wheels,  weaving  looms  and  stoves,  put  up  or 
kept  for  use  by  the  family. 

2.  The  family  bible,  family  pictures  and  school  books,  used 
by  or  in  the  family  of  such  person,  and  books  not  exceeding  in 
value  fifty  dollars,  which  are  kept  and  used  as  part  of  the  family 
hbrary. 

3.  A  seat  or  pew  occupied  by  such  person  or  his  family  in  any 
house  or  place  of  public  worship. 

4.  All  sheep,  to  the  number  of  ten,  with  their  fleeces,  and  the 
yarn  or  cloth  manufactured  from  the  same;  one  cow,  two  swine, 
and  the  necessary  food   for  them  ;  all  necessary  pork,  beef,  fish 
flour  and  vegetables  actually  provided  for  family  use,  and  neces- 
sary fuel  for  the  use  of  the  family  for  sixty  days. 

3.  All  necessary  wearing  apparel,  beds,  bedsteads  and  bed- 
ding, for  such  person  and  his  family:  arms  and  accoutrements, 
required  by  law  to  be  kept  by  such  person  ;  necessary  cooking 
utensils,  one  table,  six  chairs,  six  knives  and  forks,  six  plates, 
six  tea  cups  and  saucers,  one  sugar  dish,  one  milk  pot,  one  tea- 
pot and  six  spoons,  one  crane  and  its  appendages,  one  pair  of 
andirons,  and  a  shovel  and  tongs. 

6.  The  tools  and  implements  of  any  mechanic,  necessary  to 
the  carrying  on  of  his  trade ;  but  the  amount  thereof  shall  not 
exceed  twenty-five  dollars  in  value. 

In  addition  to  the  articles  exempted  from  sale,  under  execu- 
tion by  the  foregoing,  by  a  subsequent  enactment  there  is  ex- 
empted from  such  sale  necessary  household  furniture  and  work- 
ing tools  and  team,  owned  by  any  person  being  a  householder, 
or  having  a  family  for  which  he  provides,  to  the  value  of  not 
exceeding  one  hurjdred  and  fifty  dollars — provided  that  such 
exemption  shall  not  extend  to  any  execution  issued  on  a  demand 
for  the  jiiirrhase  money  of  such  furniture,  or  tools,  or  team,  or 
articles  now  enumerated  by  law.  (Sess.  Laws,  1842,  p.  193, 
sec.  1.) 

Goods  are  not  bound  by  a  .Justice's  execution  mitil  a  levy  is 
made.  (13  J.  H.2'19.)  An  (ixcciUion  or  allacbnuMit,  if  actually 
levied,  takes  preference  over  any  other  execution  issued  out  of 


EXECUTION.  219 

any  court,  whether  of  record  or  not,  which  has  not  been  pre- 
viously levied.     (2  R.  S.  463,  sec.  17.) 

It  sometimes  happens  that  a  debtor,  in  order  to  avoid  the 
payment  of  his  debts,  disposes  of  all  his  property,  except  such 
as  is  exempt  by  law,  and  then  sets  his  creditors  at  defiance. 
When  this  is  done  with  a  fraudulent  intent,  he  is  not  entitled 
to  the  benefit  of  the  statute.     (11  Wend.  548.     21  Wend,  68.) 

Another  impediment  in  the  way  of  executions,  is  that  which 
is  created  by  assignment  of  the  debtor's  property  in  trust,  for 
the  benefit  of  creditors,  before  the  levy  of  the  execution.  This 
results  from  the  principle  which  is  well  settled,  that  a  debtor  in 
failing  circumstances,  may  prefer  one  creditor  or  class  of  cred- 
itors to  another  ;  and  that  such  preference  will  protect  his  prop- 
erty from  being  levied  on,  at  the  suit  of  a  judgment  creditor, 
whose  execution  is  issued  subsequently  to  the  assignment.  (7 
Cow.  735.  2  J.  Ch.  R.  307.)  The  validity  of  such  an  assign- 
ment is  only  recognized  however,  when  it  is  fair  and  without 
fraud.  If  it  be  of  the  latter  character,  it  is  void,  both  at  law 
and  in  equity;  and  the  plaintiff  in  the  execution,  may  either 
treat  it  as  such,  and  levy  nowithstanding  the  assignment,  or,  as 
is  more  usual,  may  file  a  bill  in  equity  to  remove  the  fraudulent 
obstruction.     (2  Cow.  Tr.  1065,  1066.) 

If  the  goods  levied  on  are  claimed  by  some  one  other  than 
the  debtor  ;  or  if  the  constable  is  doubtful  as  to  the  ownership 
of  the  property,  he  is  bound,  if  no  indemnity  be  tendered  by  the 
creditor,  to  call  a  jury  and  try  the  title  ;  (7  Wend.  236,  238,)  and 
if  they  find  the  goods  are  not  the  debtor's,  the  execution  may 
be  returned  no  goods  found.  The  creditor  need  not  tender  a 
bond  of  indemnity  until  after  the  jury  has  passed  upon  the  ques- 
tion of  property,  previous  to  which,  an  officer  acts  at  his  peril  in 
making  a  return  of  no  goods  found.  Even  the  declaration  of 
the  creditor  or  his  attorney,  that  he  would  sell,  let  the  jury  find 
as  they  would,  does  not  dispense  with  the  necessity  of  calling  a 
jury.  (8  Cow,  65.)  When  a  bond  of  indemnity  is  tendered, 
the  constable  is  bound,  to  proceed,  notwithstanding  the  finding  of 
the  jury. 

If  the  party  is  willing  to  give  it,  the  constable  may  avoid  the 
necessity  of  calling  a  jury,  by  taking  a  bond  of  indemnity  in  the 
first  instance  ;  if  not,  the  constable  should  proceed  to  try  the 
title,  in  the  manner  above  mentioned. 

The  constable  cannot  pay  the  plaintiff  with  his  own  money, 


220  EXECUTION. 

and  levy  or  retain  the  levy  under  the  execution,  even  though 
the  defendant  agree  with  him  that  this  may  be  done  for  the  con- 
stable's security,  where  the  money  is  raised  on  their  joint  credit. 
(16  J.  R.  443.) 

If,  upon  seizing  the  goods,  the  constable  should  deliver  them 
to  a  third  person,  he  ought  to  take  a  written  acknowledgment, 
with  a  promise  to  re-deliver  them. 

FORM    OF    A    RECEIPT    OF    GOODS    LEVIED    UPON    BY    A 
CONSTABLE. 

In  Justices'  Court. 

John  Doe        ^      Execution  issued  by  David  Long,  a  Jus- 
against  >  tice  of  the  Peace  of  the  county  of  Chenango, 

Richard  Roe.    5  dated  1st  May,  1849,  for         -         $20  00 
Constable's  fees  for  collecting        2  00 


122  00 
By  virtue  of  the  above  execution,  William  Cooke,  a  constable 
of  the  said  county,  has  levied  upon  the  following  goods,  viz : 
1  black  walnut  bedstead    -  -  -         $20  00 

5  chairs  worth  two  dollars  each     -  -  10  00 

1  centre  table  -  -  -  -  10  00 

1  looking-glass        -  -  -  -  9  00 


$49  00 
Received  of  the  said  William  Cooke,  the  goods  above  men- 
tioned, which  I  promise  to  deliver  to  him  at  any  time  when  he 
shall  demand  the  same ;  or  in  default  thereof,  to  pay  him  the 
amount  of  said  execution  and  the  costs  of  collection. 

Henry  Brower. 

The  constable,  after  taking  the  goods  and  chattels  into  his 
custody,  must  endorse  on  the  execution  the  time  of  seizing 
the  same.  If  the  articles  levied  on  arc  numerous,  they  should 
be  enumerated  in  an  inventory  annexed  to  the  execution. 

FORM    OI'    endorsement    BY    CONSTABLE,   OF    A    LEVY. 

By  virliio  of  tiie  williin  cxocution,  I  have  levied  on  [It ere  spe- 
cify the  articles,]  the  ])inpcrty  of  the  defendant.     June  1st,  1849. 

William  Cooke,  Constable. 


EXECUTION.  221 

Or,  instead  of  the  foregoing :  By  virtue  of  the  within  execu- 
tion, I  have  levied  on  the  goods  and  chattels  of  the  defendant, 
mentioned  in  the  annexed  inventory.     June  1st,  1849. 

William  Cooke,  Constable. 

FORM    OF    AN    INVENTORY    TO    BE   ANNEXED. 

An  inventory  of  goods  and  chattels  this  day  levied  on,  and 
taken  into  my  custody,  by  virtue  of  the  annexed  execution. 
1  bedstead, 
5  chairs, 
1  looking-glass,  &c.,  (fee. 

June  1st,  1849. 
William  Cooke,  Constable. 

After  taking  the  property,  the  constable  must  also  immediately 
give  public  notice  by  advertisement,  signed  by  himself,  and  put 
up  at  three  public  places  in  the  city  or  town  where  the  goods 
and  chattels  are  taken,  of  the  time  and  place  within  such  city  or 
town,  when  and  where  they  will  be  exposed  for  sale.  The  no- 
tice must  describe  the  goods  and  chattels  taken,  and  must  be 
put  up  at  least  five  days  before  the  time  appointed  for  sale.  (2 
R.  S.  347,  sec.  148.) 

FORM  OF  constables'  NOTICE  OF  SALE. 

By  virtue  of  an  execution,  I  have  seized  and  taken,  one  bed- 
stead, five  chairs,  one  centre  table,  and  one  looking-glass,  the 
goods  and  chattels  of  Richard  Roe,  which  I  shall  expose  to  sale 
at  public  vendue,  to  the  highest  bidder,  on  the  10th  day  of  June, 
instant,  at  two  o'clock  in  the  afternoon,  at  the  Farmers'  Hotel, 
in  the  village  of  Oxford.     Dated  June  1st,  1849. 

William  Cooke,  Constable. 

At  the  time  and  place  appointed  for  the  sale,  the  constable 
must  sell  the  property  at  public  vendue,  to  the  highest  bidder. 
(Id.  sec.  119.)  The  goods  and  chattels  must  be  present,  and 
pointed  out  to  the  inspection  and  examination  of  the  bidder ; 
otherwise,  no  property  in  them  will  pass  to  the  purchaser.  (1 
John.  Cas.  284.)  A  general  sale  of  all  the  jyersonal  property  of 
the  defendant,  or  the  residue  of  his  personal  property,  is  a  nul- 
lity ;  for,  in  order  to  pass  the  title  of  the  property,  it  must  be 
pointed  out  specifically,  and  sold  in  separate  parcels.     (14  J.  R. 


222 


EXECUTION. 


352.  1  John.  Ch.  R.  502.)  But  if  part  of  the  property  be  pre- 
sent though  property  which  is  absent  be  set  up  for  sale  in  the 
same  parcel,  that  which  is  present  will  pass,  while  the  title  to 
the  absent  property  remains  unchanged.     (14  J.  R.  222.) 

The  constable  should  levy  and  sell  in  due  season.  If  no  bid- 
ders attend,  he  should  postpone  the  sale,  and  give  notice  to  the 
party  to  attend  and  bid  himself;  and  if  he  do  not  so  attend,  the 
constable  will  be  excused  in  returning  that  the  property  remains 
on  hand  for  want  of  buyers.  The  constable  might  also  make 
such  a  return  if  he  could  not  sell  the  property,  hut  at  a  great 
sacrifice.  He  must,  however,  proceed  and  sell  the  first  oppor- 
tunity. 

A  constable  is  gnilty  of  a  misdeaieanor,  and,  on  conviction, 
subject  to  fine  or  imprisonment,  or  both,  in  the  discretion  of  the 
court,  and  forfeiture  of  his  office,  if  he  ask  or  receive  any  money 
or  valuable  thing  from  a  defendant  or  any  other  person,  as  a 
consideration,  reward  or  inducement  for  postponing  the  sale  of 
any  property  under  any  execution,  or  for  omitting  or  delaying 
the  execution  of  any  duty  pertaining  to  his  office.  (2  R.  S.  362. 
sees.  240,  242.) 

A  constable's  sale  may  be  adjourned  to  a  different  time  and 
place  even  after  it  has  commenced.  (5  J.  R.  345.)  If  his  term 
of  office  expires  before  the  expiration  of  the  time  for  the  collec- 
tion or  return  of  the  execution,  he  may  proceed  in  the  same 
manner  as  though  his  term  of  office  had  not  expired.  (7  Wend. 
220.) 

On  a  sale  at  auction,  the  bargain  is  not  struck  until  the  arti- 
cle is  knocked  down,  until  which,  the  bid  being  a  mere  proposi- 
tion, may  be  withdrawn.  But  when  the  article  is  knocked 
down,  if  the  bidder  do  not  receive  it,  and  pay  tiie  money,  the 
article  may  be  sold  again,  and  the  bidder  is  liable  to  pay  the 
constable  the  loss  upon  the  second  sale,  or  the  constable  may 
prosecute  the  purchaser.     (4  Esp.  251.) 

If  the  article  amount  to  over  fifty  dollars,  in  order  to  comply 
with  the  statute  of  frauds,  there  should  be  a  note  or  memoran- 
dum of  sale,  earnest,  or  part  delivery. 

The  constable's  authority  over  the  property  ceases  on  the  ex- 
ecution being  returned  satisfied,  so  that  he  cannot  then  remedy 
any  defect  in  the  first  sale. 

An  exccuiion  against  the  person  cannot  issue,  in  any  instance, 


EXECUTION.  223 

until  that  against  the  property  has  been  returned  in  whole  or  in 
part  satisfied. 

Execution  where  the  Tra7iscrij>t  of  a  Judgment  is  filed. 

We  have  seen  that  a  party  may  demand  a  transcript  of  a  judg- 
ment in  his  favor  from  the  Justice  by  whom  the  judgment  was 
rendered,  which  may  be  filed  and  docketed  in  the  clerk's  office 
of  the  same  county,  the  time  of  its  receipt  being  entered  thereon, 
and  entered  in  the  docket;  and  from  that  time  the  judgment 
will  have  the  same  effect  as  a  lien,  and  be  enforced  in  the  same 
manner  as  a  judgment  of  a  county  court.     (Code,  sec.  63.) 

If  the  judgment  be  docketed  with  the  county  clerk,  the  execu- 
tion must  be  issued  by  him  to  the  sheriff  of  the  county.  It  will 
then  have  the  same  effect,  and  must  be  executed  in  the  same 
manner  as  other  executions  and  judgments  of  the  county  court, 
except  that  if  the  judgment  be  for  a  less  sum  than  twenty-five 
dollars,  exclusive  of  costs,  it  cannot  be  enforced  against  real  pro- 
perty.    (Id.  sec.  64.) 

The  execution  should  intelligibly  refer  to  the  judgment,  sta- 
ting the  court,  the  names  of  the  parties,  the  amourU  of  the  judg- 
ment if  it  be  for  money,  and  the  amount  actually  due  thereon, 
and  the  time  of  docketing  in  the  county  to  which  the  execution 
is  issued,  and  require  the  sheriff  to  satisfy  the  judgment  out  of 
the  personal  property  of  the  defendant ;  or,  if  sufficient  cannot 
be  found,  then  out  of  the  real  property  in  such  county  belonging 
to  him,  on  the  day  when  the  judgment  was  docketed  in  the 
county,  or  at  any  thereafter  ;  if  against  the  person  of  the  debtor, 
it  should  require  the  sheriff  to  arrest  the  debtor,  and  commit  hini 
to  the  jail  of  the  county  until  he  pay  the  judgment,  or  be  dis- 
charged according  to  law. 

FORM  OP  EXECUTION  AGAINST  PROPERTY. 

The  people  of  the  State  of  New  York  to  the  sheriff  of  Chenango 
county,  greeting  : — 
Whereas,  judgment  was  rendered  on  the  10th  day  of  June, 
one  thousand  eight  hundred  and  forty  nine,  in  an  action  before 
David  Long,  Esquire,  a  Justice  of  the  Peace  of  the  county  of 
Chenango,  between  John  Doe,  plaintiff,  an  Richard  Roe,  de- 
fendant, in  favor  of  the  said  John  Doe,  for  the  sum  of  twenty- 
one  dollars  and  fifty  cents,  a  transcript   whereof,  given  by  the 


224  EXECUTION. 

said  Justice  for  that  purpose,  was  filed,  and  the  said  judgment 
was  docketed  in  the  clerk's  office  of  the  said  county  of  Che- 
nango, on  the  fifteenth  day  of  June,  eighteen  hundred  and  forty- 
nine,  on  which  judgment  the  said  sum  of  twenty-one  dollars  and 
fifty  cents,  together  with  interest  thereon,  from  the  said  10th  day 
of  June,  eighteen  hundred  and  forty-nine,  is  now  due. 

Therefore,  we  command  you,  that  you  satisfy  the  said  judg- 
ment out  of  the  personal  property  of  the  said  judgment  debtor, 
within  your  county,  belonging  to  him,  on  the  said  fifteenth  day 
of  June,  eighteen  hundred  and  forty-nine,  or  at  any  time  there- 
after in  whose  hands  soever  the  same  may  be ;  and  that  you 
return  this  execution,  within  sixty  days  after  its  receipt  by  you, 
to  the  undernamed,  clerk  of  the  said  county  of  Chenango.  Da- 
ted June  15th,  1849. 

John  Doyle,  County  Clerk  of  Chenango  County. 

If  execution  be  against  the  person  of  the  defendant,  after  sta- 
ting that  judgment  was  rendered,  and  a  transcript  filed,  as  in  the 
preceding,  add : — 

"  Therefore,  we  commend  you  to  arrest  the  said  Richard  Roe, 
if  he  shall  he  found  in  your  county,  and  commit  him  to  the  jail 
thereof  until  he  shall  pay  the  said  judgment,  or  be  discharged 
according  to  law  ;  and  that  you  return  this  execution  within 
sixty  days  after  its  receipt  by  you,  to  the  undernamed,  clerk  of 
the  said  county  of  Chenango." 

After  the  lapse  of  five  years  from  the  entry  of  judgment,  an 
execution  can  be  issued  only  by  leave  of  the  court  on  motion, 
wilh  notice  to  the  adverse  party.  Such  leave  cannot  be  given 
unless  it  is  established  by  the  oath  of  the  party^  or  other  proofs 
that  the  judgment,  or  some  part  thereof,  remains  unsatisfied  and 
due.     (Code,  sec.  284.) 

When  the  judgment  shall  have  been  rendered  in  a  Court  of 
Justice  of  the  Peace,  or  in  a  Justices'  or  other  inferior  court  in  a 
city,  and  docketed  in  the  office  of  the  clerk  of  the  county,  the 
application  for  leave  to  issue  execution  must  be  to  the  county 
court  of  the  county  where  the  judgment  was  rendered,  or  in  the 
city  and  county  of  Now  York,  to  the  Court  of  Common  Pleas  of 
thai  fity  and  county.     (Id.) 

Of  the  Liability  of  the  Constable^  and  his  Sn7'ctics  on  Exe- 
cution. 
Every  person  chosen  or  appointed  to  the  oflice  of  constable, 


EXECUTION. 


225 


before  he  enters  on  ihe  duties  of  his  office,  and  within  eight  days 
after  he  is  notified  of  his  election  or  appointment,  is  required  to 
execute,  in  the  presence  of  the  supervisor  or  the  town  clerk, 
with  one  or  more  sureties,  to  be  approved  by  such  supervisor  or 
town  clerk,  an  instrument  in  Avriting,  by  which  such  constable 
and  his  sureties  jointly  and  severally  agree  to  pay  to  each  and 
every  person  who  may  be  entitled  thereto,  all  such  sums  of  mo- 
ney as  the  said  constable  may  become  liable  to  pay,  on  account 
of  any  execution  which  may  be  delivered  to  him  for  collection. 
The  supervisor  or  town  clerk  is  to  endorse  on  such  instrument 
his  approbation  of  the  sureties  therein  named,  and  file  it  in  the 
town  clerk's  ofHce  ;  and  a  copy  of  the  instrument,  certified  by 
the  town  clerk,  is  presumptive  evidence,  in  all  courts,  of  the  ex- 
ecution thereof.     (1  R.  S.  396,  sees.  38,  39.) 

FORM    OP    INSTRUMENT    TO    BE    EXECUTED    BY    A    CONSTABLE 
AND    HIS    SURETIES. 

William  Cooke,  chosen  (or  appointed)  constable  of  the  town 
of  Norwich,  county  of  Chenango,  and  John  Brown  and  James 
Wilson,  as  sureties,  do  hereby  jointly  and  severally  agree  to  pay 
to  each  and  every  person  who  may  be  entitled  thereto,  all  such 
sums  of  money  as  the  said  constable  may  become  liable  to  pay, 
on  account  of  any  execution  which  shall  be  delivered  to  him 

for  collection.     Dated  the day  of ,  1849. 

William  Cooke,  [l.  s.] 
John  Brown,         [l.  s.J 
James  Wilson,      [l.  s.] 
Executed  in  the  presence  of,  and 
the  sureties  approved  by 

William  Hawkins,  Supervisor  of  Norwich  ;  ox 
Benjamin  Sprague,  Toion  Clerk  of  Nonvich. 

The  constable  or  his  sureties  cannot  object  that  the  instru- 
ment is  not  under  seal ;  nor  in  the  foi'ni  prescribed  by  the  sta- 
tute ;  nor  that  the  sureties  were  not  approved  by  the  clerk  or 
supervisor.     (12  Wend.  306.) 

The  omission  to  file  the  instrument  within  the  eight  days 
prescribed  by  statute,  does  not  affect  its  validity ;  the  statute 
being  merely  directory.     (2  Wend.  615.) 

If  ail  execution  is  delivered  to  a  constable,  he  cannot  avoid 

15 


226  EXECUTION. 

any  liability  which  may  subsequently  accrue  upon  it,  by  deliver- 
ing it  over  to  another  officer.     (I  Serg.  148.) 

If  a  constable  neglect  to  return  an  execution,  within  five  days 
after  the  return  day  thereof,  the  party  in  whose  favor  the  same 
was  issued,  may  maintain  an  action  against  such  constable,  and 
recover  therein  the  amount  of  the  execution,  with  interest,  from 
the  time  of  the  rendition  of  the  judgment  upon  which  the  same 
was  issued.     (2  R.  S.  348,  sec.  160.) 

If  moneys  are  collected  by  a  constable,  upon  an  execution,  and 
not  paid  over  by  him  according  to  law,  an  action  may  be  maintain- 
ed by  the  party  entitled  to  such  money,  in  his  own  name,  upon  the 
instrument  of  security  given  by  such  constable  and  his  sureties^ 
and  in  such  suit,  the  amount  so  collected,  with  interest  from  the 
time  of  collection,  be  recovered.     (2  R.  S.  349,  sec.  164.) 

Actions  upon  the  constable's  instrument  of  security,  against 
him  or  his  sureties,  must  be  prosecuted  within  two  years  after 
the  expiration  of  the  year  for  which  the  constable  was  elected. 
(Id.  396,  sec.  40.)  This,  however,  is  only  where  the  suit  is  iipori 
the  instniment.  The  constable  will,  at  all  times,  be  liable  in 
an  action  brought  by  the  party  on  whose  execution  he  has  col- 
lected money,  if  the  suit  is  brought  before  the  claim  becomes 
barred  by  the  statute  of  limitations. 

The  responsibility  of  the  sureties  is  coextensive  with  that  of 
the  constable ;  and  they  are  liable,  wherever  he  is  liable  to  a 
party  in  whose  favor  an  execution  has  been  delivered  to  him. 
An  action,  therefore,  lies  upon  the  constable's  instrument  of 
security,  against  the  constable  and  his  sureties,  for  the  7nere 
neglect  to  return  an  execution  within  five  days  after  the  return 
day  thereof,  and  this,  without  showing  any  moneys  collected. 
(10  Wen.  370.) 

The  responsibility  of  the  constable  and  his  sureties  is  suffi- 
ciently broad  to  cover  all  the  constable's  lial)ilitics  to  parties  who 
may  be  allected  by  his  misconduct  in  relation  to  executions.  If 
he  return  to  an  execution  no  goods  found,  when  the  defendant 
has  properly  in  his  open  and  visible  possession,  he  is  liable  to 
an  action.  And  an  action  for  falsely  returning  no  goods  found, 
may  be  maintained,  even  after  the  defendant  is  taken  and  im- 
j)risoned  on  excrution  in  the  same  cause.     (I  Camp.  323.) 

If  the  constable  snllcr  an  escape  from  execution,  he  is  liable  Iq 
an  action,  to  be  conuneiiced  within  one  year  from  the  time  of 
the  escape.     (2  11.  «.  394,  sec.  21.) 


EXECUTION. 


227 


A  voluntary  return,  or  recaption  of  the  prisoner,  where  the 
escape  was  not  voluntary,  constitutes  a  good  defence,  if  such 
return  or  recaption  were  before  suit  commenced.  (2  R.  S.  533, 
sec.  82.) 

If  the  plaintiff  consent  that  the  defendant  be  discharged,  or 
that  he  go  out  of  the  custody  of  the  constable,  or  off  the  jail 
hmits,  the  judgment  is  thereby  discharged,  and  the  debt  extin- 
guished, unless  the  consent  is  obtained  fraudulently.  If,  howe- 
ver, the  debtor  has  once  escaped,  the  plaintiff's  subsequent  con- 
sent, that  he  may  remain  at  large,  will  not  discharge  the  judg- 
ment, nor  protect  the  officer  from  an  action  for  the  escape.  (13 
J.  R.  181.) 

A  constable,  instead  of  arresting  the  defendant  or  taking  his 
goods,  may  take  the  defendant's  note,  or  other  security,  for  the 
debt ;  and,  though  he  have  no  previous  authority  to  do  this, 
if  the  plaintiff  subsequently  approves  of  it,  the  note  is  valid. 
(4  Camp.  46.) 


CHAPTER   XII. 

OP   THE    REMOVAL    OF    CAUSES    TO    THE    COUNTY    COURT,    BY 

APPEAL. 

This  chapter  comprises  the  following  subjects  : — 

1.  Theo     iirt  to  which  an  Appeal  must  be  taken. 

2.  "When  and  how  the  Appeal  must  be  made. 

3.  Steps  by  the  Appellant,  to  stay  Execution. 

4.  Of  the  Justice's  Return. 

5.  Proceedings  and  Costs  in  Appellate  Court. 

The  mode  of  reviewing  judgments,  rendered  by  Coiirts^of 
Justices  of  the  Peace,  is  by  appeal  to  the  county  court  of  the 
county  where  the  judgment  was  rendered.     (Code,  sec,  352  ) 

The  party  appealing  is  known  as  the  appellant,  and  the  ad- 
verse party  as  the  respondent.  But  the  title  of  the  cause  should 
not  be  changed,  nor  the  names  of  the  parties  reversed,  as  for- 
merly.    (Id.  sec.  326.) 

Within  twenty  days  after  the  judgment,  an  affidavit,  as  the 
foundation  of  the  appeal,  must  be  made  by,  or  on  behalf  of,  the 
appellant,  stating  the  substance  of  the  testimony  and  proceed- 
ings before  the  court  below,  and  the  grounds  of  the  appeal. 
The  affidavit  may  be  made  by  the  party  bringing  the  appeal, 
his  attorney,  or  by  any  other  person  who  is  acquainted  with  the 
facts  of  the  case.     (Id.  sec.  353. ) 

FORM    OF    AFFIDAVIT. 

Chenanffo  County,  ss : — Richard  Roe  being  duly  sworn,  says, 
that  on  the  first  day  of  June,  eighteen  hundred  and  forty-nine, 
a  suit  was  commenced,  by  summons,  against  this  deponent,  by 
John  Doc,  before  David  Long,  Esquiie,  a  Justice  of  the  Peace  of 
the  viihige  of  Oxford,  county  aforesaid,  returnable  on  the  ninth 
day  of  June,  tin  n  instant,  at  his  office,  at  ten  o'clock  in  the 
forenoon  ;  that,  on  tli;it  day,  the  parlies  appeared,  and  joined  is- 
sue as  follows:  —  \li.(r(i  statu  the  siihstance  of  the  ])leadinffs]  ; 
that  the  cause  was  lh<Mi  adjourned  to  the  fifiecnth  day  of  June, 
then  instant,  at  the  same  j)la(:e,  at  two  o'clock,  i>.  m.,  at  which 


REMOVAL  OF  CAUSES  TO  THE  COUNTY  COURT,  &c.     229 

time  and  place,  the  parties  again  appeared,  and  proceeded  to 
trial. 

Deponent  further  says,  that  on  the  said  trial,  the  said  plaintiff 
called  Peter  Pray  as  a  witness,  who  was  duly  sworn,  and  testi- 
fied as  follows  : — \Jiere  state  the  testimony  given  on  the  trials 
a7id  the  objections  taken  by  the  respective  parties.] 

Deponent  further  says,  that  after  the  evidence  was  closed,  this 
deponent  moved  the  court  that  the  plaintiff  be  nonsuited,  on  the 
ground, — [here  state  the  grounds']  ;  but  the  Justice  denied  the 
motion,  and  decided, — [here  state  the  decision,  the  amount  of  the 
judgment,  and  the  time  when  rendered.] 

Deponent  assigns  the  following  grounds  as  error,  upon  which 
his  appeal  is  founded,  viz. : 

1.  That  the  Justice  erred  in  excluding  the  evidence  offered 
by  this  deponent.     [Here  state  the  offer  and  ruli^ig.] 

2.  That  the  Justice  erred  in  admitting  the  evidence  of  A.  B., 
which  was  objected  to. 

3.  That  the  Justice  erred  in  refusing  to  nonsuit  the  plaintiff. 

Richard  Roe. 
Subscribed  and  sworn,  this  25th  day  of 
June,  1849,  before  me, 

David  Long,  Justice. 

A  copy  of  the  foregoing  affidavit,  and  a  notice  of  appeal, 
must  within  twenty  days  after  the  rendering  of  the  judgment, 
be  served  on  the  Justice,  and  on  the  opposite  party.  The  service 
on  the  party,  if  he  is  a  resident  of  the  city  or  county,  may  either 
be  personal,  or  by  leaving  the  copy  affidavit  and  notice  at  his 
residence,  with  some  person  of  suitable  age  and  discretion  ;  if 
he  is  not  a  resident,  the  service  may  be  on  the  attorney  or  agent, 
if  any,  who  is  a  resident  of  such  city  or  county,  who  appeared 
for  him  on  the  trial.     (Code,  sec.  354.) 

FORM    OP    NOTICE. 

In  Justices''  Court,  before  David  Long,  Justice. 
John  Doe         ) 
against  V 

Richard  Roe.     j 

Sir  : — Please  take  notice,  that  Richard  Roe,  defendant  in 
this  cause,  appeals  from  the  judgment  rendered  against  him  by 


230  OF  THE  REMOVAL  OF  CAUSES  TO 

the  aforesaid  Justice,  on  the  fifteenth  day  of  June  last,  which 
judgment  is  mentioned  and  referred  to  in  the  affidavit,  a  copy 
of  which  is  hereunto  annexed,  and  herewith  served  on  you — to 
the  county  court  of  the  county  of  Clienango,  and  tliat  the  said 
appeal  will  he  heard  by  the  Hon.  Alfred  B.  Ketcham,  county 
Judge,  at  his  office  in  the  village  of  Norwich,  on  the  first  day 
of  July  next,  at  ten  o'clock  in  the  forenoon.  Dated  Oxford, 
June  25th,  1849.  Yours,  &c., 

John  Myers,  Defendant's  Attorney. 
To  John  Doe,  Esquire. 

If  the  party  appealing,  wishes  to  prevent  the  issuing  of  exe- 
cution on  the  judgment  rendered  by  the  Justice,  he  must  give 
security.  The  security  for  the  purpose  of  staying  execution, 
must  be  a  written  undertaking,  executed  by  one  or  more  suffi- 
cient sureties  approved  by  the  county  Judge,  or  by  the  Justice 
who  rendered  the  judgment,  to  the  effect  that  if  judgment  be 
rendered  against  the  appellant,  and  execution  thereon  be  re- 
turned unsatisfied  in  whole  or  in  part,  the  sureties  will  pay  the 
amount  unsatisfied.     (Code,  sec.  35G.) 

FORM    OF    AN   UNDERTAKING    TO    PROCURE    A    STAY    OF    PRO- 
CEEDINGS   ON    A    justice's    judgment. 

In  Justices'  Court,  before  David  Long,  Justice. 
John  Doe        ^ 

against  >  Undertaking  on  Appeal. 

Richard  Roe.     j 

The  defendant  Riehard  Roe,  having  appealed  from  the  judg- 
ment rendered  against  him— [here  describe  the  judgme?it] — in 
this  action  :  Now,  therefore,  in  order  to  slay  the  execution  of 
the  said  judgment,  and  in  consideration  thereof,  we,  Richard 
Roe  and  Henry  Jones,  undertake  and  promise  to  and  with  the 
.said  John  Doe,  that  if  judgment  be  rendered  against  the  said 
Ricburd  Roe  on  the  said  appeal,  and  execution  thereon  be  re- 
turned unsatisfied  in  wliolc  or  in  part,  we  will  pay  the  amount 
unsatisfied. 

As  witness  our  hands  and  seals  this  24lh  day  of  Juno,  1849. 

Richard  Roe,  [l.  s.] 
Henry  .Iones,   [l.  s.J 

The  foregoing  must  be  approved  by  the  county  Judge,  or  by 


THE  COUNTY  COURT,  BY  APPEAL.  231 

the  Justice  who  rendered  the  judgment.    (Code,  sec.  356.)    The 
approval  may  be  by  an  endorsement  on  the  undertaking,  thus  : 

"  I  approve  of  the  within  undertaking,  and  the  surety  therein 
named. 

David  Long,  Justice." 

The  officer  to  whom  the  undertaking  is  presented,  should 
satisfy  himself  that  the  sureties  are  sufficient,  and  that  no 
other  officer  to  whom  the  same  may  legally  be  presented  for 
approval,  has  refused  to  approve  the  same. 

The  delivery  of  the  undertaking  to  the  Justice,  will  stay  the 
issuing  of  execution.  Or,  if  the  execution  has  already  been 
issued,  the  service  of  a  copy  of  the  undertaking,  certified  by  the 
Justice,  upon  the  officer  holding  the  execution,  will  stay  further 
proceedings  thereon.     (Id.  sec.  357.) 

When  by  reason  of  the  death  of  a  Justice  of  the  Peace,  or 
his  removal  from  the  county,  or  any  other  cause,  the  underta- 
king on  the  appeal  cannot  be  delivered  to  him,  it  must  be  filed 
with  the  clerk  of  the  appellate  court,  and  notice  thereof  given 
to  the  opposite  party,  or  his  attorney  or  agent.    (Id.  sec.  358.) 

When  the  affidavit  and  notice  of  appeal  have  been  served, 
the  respondent  may  supply  or  correct  material  omissions  or  mis- 
statements therein,  by  an  affidavit  on  his  part,  a  copy  of  which 
must  be  served  on  the  Justice,  and  also  the  attorney,  if  any, 
who  prosecutes  the  appeal,  or  if  there  be  none,  on  the  appellant, 
within  ten  days  after  receiving  notice  of  the  appeal.  (Code, 
sec.  359.) 

The  Justice  who  rendered  the  judgment  appealed  from,  must 
thereupon,  after  ten  days,  and  within  thirty  days  after  service  of 
the  notice  of  appeal,  make  a  return  to  the  appellate  court  of  the 
testimony,  proceedings,  and  judgment,  and  file  the  same  with 
the  affidavits  in  the  appellate  court.  If  the  Justice  refuse  to 
make  a  return,  he  may  be  compelled  to  do  so  by  attachment. 
No  Justice,  however,  will  be  bound  to  make  a  return,  unless  the 
sum  of  one  dollar  be  paid  him,  on  service  of  the  notice  of  appeal. 
(Id.  360,  371.) 

When  a  Justice  of  the  Peace  by  whom  a  judgment  appealed 
from  was  rendered,  shall  have  gone  out  of  office  before  a  return 
is  ordered,  he  must  nevertheless  make  a  return  in  the  same 
manner  and  with  the  like  effect,  as  if  he  were  still  in  office, 
(Id.  sec.  361.) 


232  OF  THE  REMOVAL  OF  CAUSES  TO 

If  the  return  be  defective,  the  appellate  court  may  direct  a 
further  or  amended  return,  as  often  as  may  be  necessary,  and 
may  compel  a  compliance  with  its  order  by  attachment.  (Id. 
sec.  362.) 

If  a  Justice  of  the  Peace  whose  judgment  is  appealed  from, 
die,  become  insane,  or  remove  from  the  state,  the  appellate 
court  may  examine  witnesses  on  oath,  to  the  facts  and  circum- 
stances of  the  trial  or  judgment,  and  determine  the  appeal,  as 
if  the  facts  had  been  returned  by  the  Justice.  If  he  shall  have 
removed  to  another  county  within  the  state,  the  appellate  court 
may  compel  him  to  make  the  return,  as  if  he  were  still  within 
the  comity  where  the  judgment  was  rendered.    (Id.  sec.  363.) 

FORM    OF    justice's    RETURN. 

Justices^  Court,  before  David  Long,  Justice. 
John  Doe        ^ 

agaijist  >  Return  on  Appeal. 

Richard  Roe.     ) 

To  the  County  Court  of  the  County  of  Chenango  : 
Upon  the  affidavits  which  are  hereunto  annexed,  I,  the  un- 
dernamed Justice,  do  return,  that  on  the  first  day  of  June, 
eighteen  hundred  and  forty-nine,  I  issued  a  summons,  in  behalf 
of  John  Doe,  against  Richard  Roe,  summoning  the  said  Roe  to 
appear  before  mc  at  my  office,  in  the  village  of  Oxford,  on  the 
9th  day  of  June  then  instant,  at  ten  o'clock  in  the  forenoon,  to 
answer  to  the  said  John  Doe,  in  an  action  on  a  promissory  note. 
1'he  summons  was  returned,  personally  served,  on  the  third  day 
of  June,  by  William  Cooke,  constable,  with  his  return  endorsed 
thereon ;  and  at  the  time  and  place  last  mentioned,  the  parties 
appeared  and  joined  issue  in  said  suit.  The  plaintiff  thereupon 
complained  upon  a  promissory  note,  dated  February  1st,  1849, 
purporting  to  have  been  drawn  by  the  defendant,  and  payable 
to  the  plainlill,  for  the  sum  of  fifty  dollars,  on  demand ;  to 
which  the  defendant  answered  substantially  as  follows  :  [here 
set  out  the  atisver.] 

Issue  being  thus  joined,  the  cause  was  adjourned,  by  the  de- 
fendant, to  the  15th  day  of  June  instant,  at  the  same  place,  at 
two  o'clock  in  the  afternoon. 

At  the  time  and  place  last  aforesaid,  the  said  parties  again 
appeared ;  and  on  the  trial  of  the  said  cause,  the  following  tes- 


THE  COUNTY  COURT,  BY  APPEAL.  233 

timony  and  proceedings  were  had,  to  wit :  Ira  Smith,  being 
sworn  as  a  witness  on  the  part  of  the  plaintiff,  testified  as  fol- 
lows :  [set  out  the  substance  of  his  tesiimotii/.] 

John  Brown,  another  witness  for  plaintiff,  testified  as  fol- 
lows : — 

The  plaintiff  here  rested.  Thereupon  the  defendant  called 
James  Hardy  as  a  witness  in  his  behalf,  who,  being  sworn,  tes- 
tified substantially  as  follows  :  &.c. 

And  after  hearing  the  proofs  and  allegations  of  the  parties,  I, 
the  said  Justice,  then  and  there  rendered  judgment  in  favor  of 
the  said  plaintiff,  for  the  said  sum  of  fifty  dollars,  together  with 
two  dollars  and  fifty  cents  costs. 

All  which  I  respectfully  return  to  the  said  court,  as  by  law 
required.     Dated  July  15th,  1849. 

David  Long,  Justice. 

When  a  return  is  made,  the  appeal  may  be  brought  to  a  hear- 
ing at  a  general  term  of  the  Appellate  Court,  upon  a  notice  by 
either  party  of  not  less  than  eight  days.  It  must  be  placed  upon 
the  calendar  and  continue  thereon,  without  further  notice,  until 
finally  disposed  of;  but  if  neither  party  bring  it  to  a  hearing 
before  the  end  of  the  second  term,  the  court  must  dismiss  the 
appeal,  unless  it  continue  the  same  by  special  order,  for  cause 
shown.     (Code,  sec.  364.) 

The  appeal  must  be  heard  on  the  original  papers ;  and  no 
copy  thereof  need  be  furnished  for  the  use  of  the  court.  (Id. 
sec.  365.) 

Upon  the  hearing  of  the  appeal,  the  Appellate  Court  must 
give  judgment  according  to  the  justice  of  the  case,  without  re- 
gard to  technical  errors  or  defects  which  do  not  affect  the  merits. 
In  giving  judgment,  the  court  may  affirm  or  reverse  the  judg- 
ment of  the  court  below,  in  whole  or  in  part,  and  as  to  any  or 
all  the  parties,  and  for  errors  of  law  or  fact.     (Id.  sec.  366.) 

To  every  judgment  upon  an  appeal,  there  must  be  annexed  the 
affidavits  or  return  on  which  it  was  heard,  which  must  be  filed 
with  the  clerk  of  the  court,  and  constitute  the  judgment  roll. 
(Id.  sec.  367.) 

If  judgment  be  affirmed,  costs  must  be  awarded  to  the  re- 
spondent. If  it  be  reversed,  costs  must  be  awarded  to  the  ap- 
pellant.   If  it  be  affirmed  in  part,  the  costs,  or  such  part  as  to 


234  OF  THE  REMOVAL  OF  CAUSES,  &c. 

the  court  shall  seem  just,  may  be  awarded  to  either  party.     (Id. 
sec.  36S.) 

If  the  judgment  below,  or  any  part  thereof,  be  collected,  and 
the  judgment  be  afterwards  reversed,  the  Appellate  Court  must 
order  the  amount  collected  to  be  restored,  with  interest  from  the 
time  of  collection.  The  order  may  be  obtained,  upon  proof  of 
the  facts  made,  at  or  after  the  hearing,  upon  a  previous  notice 
of  six  days.     (Id.  sec.  349.) 

If,  upon  an  appeal,  a  recovery  be  had  by  one  party,  and  costs 
be  awarded  to  the  other,  the  Appellate  Court  must  set  off  the 
one  against  the  other,  and  render  judgment  for  the  balance. 
(Id.  sec.  370.)  1 

The  following  fees  and  costs,  and  no  other,  except  fees  of  offi- 
cers, can  be  allowed  on  appeals  : — 

To  the  appellant  on  reversal,  fifteen  dollars. 

To  the  respondent  on  affirmance,  twelve  dollars. 

To  a  Justice  of  the  Peace,  for  his  return,  one  dollar. 

If  the  judgment  appealed  from  be  reversed  in  part,  and 
affirmed  as  to  the  residue,  the  amount  of  costs  allowed  to  either 
party  must  be  such  sum  as  the  Appellate  Court  may  award,  not 
exceeding  ten  dollars. 

If  the  appeal  be  dismissed  for  want  of  prosecution,  no  costs 
can  be  allowed  to  cither  party.     (Code,  sec.  371.) 


CHAPTER    XIII. 

MISCELLANEOUS    PROVISIONS    AND    PROCEEDINGS. 

I  shall  treat  the  subjects  of  this  chapter  under  the  following 
heads : — 

1.  Power  of  Courts  in  Cases  of  Contempts. 

2.  When  Justices  of  the  Peace  may  Punish,  as  for  a  Con- 

tem,pt. 

3.  The  Punishment  for  Contempt,  and  when  and  how  en- 

forced. 

4.  Proceedings  against  Witnesses  or  Jurors,  for  no?i-attend- 

ance  or  refusal  to  serve. 

5.  Surety  for  the  Peace. 

6.  Of  Weights  and  Measures. 

7.  Computation  of  Time. 

8.  Of  the  Justices''  Docket. 

9.  Of  the  Abatement  of  Suits  by  Death. 

1.  Poiver  of  Courts  in  Cases  of  Contem^pts. 

All  courts  have  power,  while  in  the  exercise  of  their  lawful 
functions,  to  preserve  order,  decency,  and  silence.  (1  Chitt.  Or. 
Law,  88,  89.)  This  power  was  held  to  be  incident  to  every 
court  at  common  law ;  and  the  Supreme  Court  of  this  state  has 
decided  that  the  power  of  a  magistrate  to  commit  for  insults  or 
contempts  offered  to  him  while  in  the  due  exercise  of  his  office, 
is  incidental  to  magisterial  authority,  without  which  he  could 
never  vindicate  or  support  the  laws  which  are  intrusted  to  his 
management,  and  over  which  he  has  jurisdiction. 

2.  When  Justices  of  the  Peace  7nay  Punish  as  for  a  Con- 
tempt. 

In  the  following  cases,  and  in  no  others,  a  Justice  may  pun- 
ish as  for  a  criminal  contempt,  persons  guilty  of  :— 

1.  Disorderly,   contemptuous,  or  insolent   behavior  towards 


236  MISCELLANEOUS  PROVISIONS 

such  Justice  while  engaged  in  the  trial  of  a  cause,  or  in  the  ren- 
dering of  any  judgment,  or  in  any  judicial  proceeding,  which 
shall  tend  to  interrupt  such  proceedings,  or  to  impair  the  respect 
due  to  his  authority. 

2.  Any  breach  of  the  peace,  noise,  or  other  disturbance,  tend- 
ing to  interrupt  tiie  official  proceedings  of  a  Justice. 

3.  Resistance  wilfully  offered  by  any  person,  iti  the  presence 
of  a  Justice,  to  the  execution  of  any  lawful  order  or  process, 
made,  or  issued  by  him.     (2  R.  S.  368,  sec.  286.) 

It  will  be  seen,  by  reference  to  the  statute,  that  a  Justice  is 
empowered  to  punish  for  contempt  in  those  cases  only  where 
the  contempt  is  committed  while  he  is  engaged  in  his  official 
duties,  or  where  wilful  resistance  is  made,  in  his  presence,  to  his 
lawful  order  or  process. 

3.  The  Punishment  for  Contempt,  and  when  andhoiu  enforced. 

A  Justice  may  punish  for  contempt,  by  fine  not  exceeding 
twenty-five  dollars;  or  by  imprisonment,  in  the  county  jail,  not 
exceeding  five  days;  or  both,  in  his  discretion.  But  the  impri- 
sonment for  the  non-payment  of  a  fine,  cannot  exceed  ten  days. 
(2  R.  S.  368,  sec.  287.)  No  person  can  be  punished  for  a  con- 
tempt, until  an  opportunity  shall  have  been  given  him  to  be 
heard  in  his  defence.  In  most  instances,  the  offence  will  be 
committed  in  the  immediate  presence  of  the  Justice  ;  and  under 
such  circumstances,  that  the  offender  may  be  required,  by  the 
Justice,  to  make  his  defence,  forthwith ;  but  if  he  withdraw,  be- 
fore such  requirement  is  made,  he  must  be  brought  before  the 
Justice  by  warrant.     (2  R.  S.  369,  sec.  288.) 

The  acts  constituting  a  contempt,  will,  of  course,  vary  with 
the  circumstances  of  each  case.  I  can,  therefore,  only  give  the 
forms  for  a  supposed  case.  I  have  selected  one  which  will,  pro- 
bably, be  of  most  frequent  occurrence — thatof  insolent  language, 
addressed  to  the  Justice  on  the  trial. 

FORM    OF    A     WARRANT. 

Town  of  Oxford,  ss  : 

To  any  Constable  of  the  County  of  Chenango,  Greeting  : 
You  are  hereby  commanded,  in  the  name  of  the  people  of  the 
State  of  New  York,  to  apprehend  Peter  Brown,  and  bring  him 
before  me,  the  undcriifuned  Justice  of  the  Peace,  at  my  office, 


AND  PROCEEDINGS.  237 

in  Oxford,  to  be  heard  in  his  defence,  against  his  conviction  for 
a  supposed  criminal  contempt,  commiited  by  iiim,  on  tlie  10th 
day  of  June,  instant,  at  Oxford  aforesaid,  in  speaking  to,  and 
of,  and  concerning  me,  the  said  Justice,  and  in  my  presence  and 
hearing,  while  I  was  engaged  in  the  trial  of  a  certain  cause, 
wherein  John  Doe  was  plaintiff,  and  the  said  John  Smith  de- 
fendant, and  in  open  court,  there  disorderly,  contemptuous,  and 
insolent  words,  tending  to  interrupt  the  proceedings  on  said  trial, 
and  to  impair  the  respect  due  to  my  authority,  as  a  Justice  of 
the  Peace,  that  is  to  say,  "You  are  a  partial  Justice."  And 
make  due  return  hereof  Given  under  my  hand  June  lllh, 
1849. 

David  Long,  Justice, 

When  the  offender  is  brought  before  the  Justice  on  the  war- 
rant, or,  where  the  Justice  proceeds  forthwith,  while  the  offen- 
der remains  before  him,  his  defence  is  to  be  heard,  if  any  shall 
be  offered.  If  no  sufficient  defence  is  made,  the  Justice  must 
make  up  and  sign  a  record  of  conviction,  stating  therein  the 
particular  circumstances  of  the  offence,  and  the  judgment  ren- 
dered thereon.     (2  R.  S.  369,  sec.  289.) 

The  following  form  is  adapted  to  the  case  of  a  proceeding 
forthwith,  upon  the  commission  of  the  offence,  which  will  most 
commonly  be  done : 

FORM  OF  RECORD  OF  CONVICTION. 

Tow7i  of  Oxford,  ss  : 

Be  it  remembered,  that  John  Smith  is  convicted  before  mo,  the 
undermentioned  Justice  of  the  Peace  of  Oxford,  aforesaid,  on 
this  10th  day  of  June,  eighteen  hundred  and  forty-nine,  at  Ox- 
ford, aforesaid,  as  for  a  criminal  contempt;  and  the  particular 
circumstances  of  said  offence,  the  proceedings  before  me  had  in 
relation  thereto,  and  the  judgment  by  me  rendered  therein,  are 
as  follov/s — that  is  to  say  :  On  the  day  and  year  aforesaid,  and 
at  the  place  aforesaid,  a  court  was  held  before  me,  for  the  trial 
of  an  issue  joined  in  a  certain  action,  on  a  promissory  note,  be- 
tween John  Doe,  plaintiff,  and  the  said  John  Smith,  defendant, 
pursuant  to  the  statute  in  such  case  made  and  provided ;  and 
while  I  was  engaged  in  said  court,  in  the  trial  of  said  cause, 
and  in  the  lawful  exercise  of  my  powers  and  duties,  as  a  Jus- 
tice of  the  Peace,  the  said  John  Smith  spoke  the  following  dis- 


238  MISCELLANEOUS  PROVISIONS 

orderly,  contemptuous,  insolent  words,  tending  to  interrupt  the 
proceedings  on  said  trial,  and  to  impair  the  respect  due  to  my 
authority,  to,  and  of,  and  concerniug  me,  the  said  Justice,  and  in 
my  presence  and  hearing,  and  in  the  presence  of  other  citizens,, 
then  and  there  present, — that  is  to  say  :  "  You  are  a  partial  Jus- 
lice."  Upon  the  speaking  of  which  words,  I  required  the  said 
John  Smith,  forthwith  to  make  his  defence  against  his  convic- 
tion for  a  criminal  contempt ;  but  the  said  Smith,  although  then 
and  there  present  before  me,  and  having  opportunity  to  be  hoard 
in  his  defence,  did  not  make  any  sufficient  defence  against  his 
conviction  for  said  offence  ;  whereupon  the  said  John  Smith 
was  convicted  before  me,  as  aforesaid,  and  by  me  adjudged  to  be 
imprisoned  for  said  offence,  in  the  common  jail,  in  said  county, 
for  the  term  of  three  days.  (Or,  "  adjudged  to  pay  a  fine  of  ten 
dollars,  and  to  stand  committed  until  such  fine  be  paid,  or  he 
be  discharged  from  imprisonment,  according  to  law  ;  or,  to  pay 
a  fine  of  ten  dollars,  and  be  imprisoned,  in  the  common  jail  of 
said  county,  for  the  term  of  three  days :  and  until  such  fine  be 
paid,  or  he  be  discharged  from  imprisonment,  according  to  law.) 
Given  under  my  hand,  at  Oxford,  the  day  and  year  above 
written. 

David  Long,  Justice. 

Within  ten  days  after  the  date  of  the  record  of  conviction, 
the  Justice  is  required  to  file  it  in  the  county  clerk's  office. 

The  warrant  of  commitment  must  set  forth  the  particular 
circumstances  of  the  offence,  or  it  will  be  void.  A  commitment 
can  be  made  in  two  cases  :  First,  where,  by  the  adjudication  of 
the  Justice,  imprisonment  is  directed  ;  and  secondly,  where  a  fine 
is  imposed,  and  the  offender  neglects,  or  refuses,  to  pay  it. 
There  is  also  a  third  case,  compounded  of  the  other  two,  where 
the  offender  is  adjudged  to  both  fine  and  imprisonment ;  in 
which  case,  he  may  be  detained  in  prison  after  the  adjudged 
term  of  im[»risonment  has  expired,  for  the  non-payment  of  tlio 
fine ;  but  such  imprisonment  cannot  exceed  ten  days.  Where 
imprisonment  is  adjudged,  or  the  offender  is  committed  for  the 
non-payment  of  the  fine,  the  warrant  should  direct  the  number 
of  days  for  which  the  offender  is  to  be  imprisoned.  (2  R.  S. 
360,  sec.  200.) 


AND  PROCEEDINGS.  239 

FORM    OF    A    WARRANT    OF    COMMITMENT. 

Town  of  Oxford,  ss  : 

To  any  Constable  of  the  County  of  Chenango,  Greeting: 
Whereas,  John  Smith  has,  this  tenth  day  of  June,  eighteen 
hundred  and  forty-nine,  at  Oxford  aforesaid,  been  convicted  be- 
fore me,  the  undernamed  Justice  of  the  Peace,  of  said  town,  of 
a  criminal  contempt ;  and  the  particular  circumstances  of  said 
offence,  the  proceedings  before  me  had  in  relation  thereto,  and 
the  judgment  by  me  rendered  therein,  as  the  same  are  set  forth 
in  my  record  of  said  conviction,  are  as  follows, — that  is  to  say: 
[here  transcribe,  from  the  record  of  conviction,  the  circumstan- 
ces of  the  offence,  and  the  proceedings  and  judgment  therein  ; 
and  if  the  commitment  be  for  the  non-payment  of  a  fine,  add 
the  further  recital,  "  and  whereas,  the  said  John  Smith,  although 
fully  notified  of  said  conviction  and  judgment,  has  not  paid  the 
said  fine."]  You  are,  therefore,  hereby  commanded,  in  the 
name  of  the  people  of  the  state  of  New  York,  to  convey  the 
said  John  Smith  to  the  common  jail  of  said  county,  the  keeper 
whereof  is  required  to  detain  him,  in  custody  in  the  said  jail, 
for  the  term  of  three  days.  (Or,  if  the  commitment  be  for  the 
non-payment  of  a  fine,  "  the  keeper  whereof,  is  hereby  required 
to  detain  him  in  custody,  in  said  jail,  until  said  fine  be  paid  ;  but 
in  case  of  non-payment  thereof,  such  imprisonment  is  not  to  ex- 
ceed ten  days ;"  or  if  it  be  the  compound  case  above-mentioned, 
then  say,  "  the  keeper  whereof  is  required  to  detain  him  in 
custody,  in  said  jail,  for  the  term  of  three  days ;  and  if  said  fine 
shall  then  remain  unpaid,  the  said  keeper  is  further  required  to 
detain  him  in  custody  in  said  jail,  until  such  fine  be  paid  ;  but 
the  term  of  such  imprisonment,  for  the  non-payment  of  said 
fine,  is  not  to  exceed  ten  days,  from  and  after  the  expiration  of 
the  term  of  three  days,  as  above  expressed."  Given  under  my 
hand,  at  Oxford,  this  10th  day  of  June,  1849. 

David  Long,  Justice. 

4.  Proceedings  against  Wit7iesses  or  Jurors,  for  Non- Atten- 
dance or  Refusal  to  Serve. 

Every  witness  duly  subpoenaed,  who  shall  not  appear,  or,  ap- 
pearing, shall  refuse  to  testify,  forfeits,  for  the  use  of  the  poor 
of  the  town,  a  fine,  not  less  than  sixty-two  cents,  nor  more  than 
ten  dollars,  in  the  discretion  of  the  Justice ;  unless  some  reason- 


240  MISCELLANEOUS  PROVISIONS 

able  cause  or  excuse  be  shown,  on  his  own  oath,  or  the  oath 
of  some  other  person.     (2  R.  S.  338,  sees.  86,  112.) 

Every  person  summoned  as  a  juror,  who  does  not  appear,  nor 
tender  a  reasonable  excuse  for  his  default,  or  appearing,  refuses 
to  serve,  is  subject  to  the  same  fine,  to  be  prosecuted  for,  and 
collected  with  costs,  in  the  same  manner,  and  applied  to  the 
same  use,  as  in  the  case  of  a  defaulting  witness.  (Id.  341,  sec. 
112.) 

If  the  witness  or  juror  be  present,  and  have  opportunity  to  be 
heard  in  his  defence,  as  will  be  the  case,  where  the  default  is 
for  refusal  to  serve  or  testify,  the  Justice  may  proceed  in  the 
matter  forthwith.  The  statute  would  seem  to  imply  at  first 
view,  that  the  fine  could  not  be  imposed  in  any  case,  unless  the 
defaulting  party  was  personally  present  at  the  imposition  thereof. 
I  am,  however,  led  to  the  opinion,  upon  comparing  the  present 
with  the  corresponding  provisions  of  the  former  law,  and  the 
analagous  proceedings  in  higher  courts,  as  well  as  by  a  consid- 
eration of  the  severity  of  a  rule  which  would  require  the  issuing 
of  a  warrant  in  all  such  cases,  that  the  fine  may  be  imposed 
when  the  defaulting  juror  or  witness  has  been  personally  sum- 
moned and  does  not  attend  ;  and  that  the  statute  is  only  intended 
to  give  the  Justice  the  power  to  impose  the  fine  summarily,  and 
without  a  formal  prosecution,  when  the  defaulting  party  is  be- 
fore him.    (Id.) 

FORM    OF    SUMMONS. 

Town  of  Oxford,  ss. 

To  any  constable  of  the  county  of  Chenango,  Greeting  : 
You  are  hereby  commanded,  in  the  name  of  the  people  of  the 
state  of  New  York,  to  summon  Henry  Strong  to  appear  before 
me,  the  imdcrnamed  Justice  of  the  Peace,  at  my  office,  in  Ox- 
ford, on  the  20th  day  of  June,  instant,  at  two  o'clock  in  the  af- 
ternoon, to  show  cause,  and  to  be  heard  in  his  defence,  against 
the  imposition  of  a  fine  for  his  non-attendance  as  a  juror,  at  my 
office,  aforesaid,  on  the  lOlh  day  of  June,  instant,  at  two  o'clock 
in  the  afternoon  of  that  day,  in  a  cause  then  and  there  depend- 
ing before  me,  in  which  John  Doe  was  plaintifl",  and  Richard 
Roe,  defendant,  the  said  action  arising  on  contract ;  the  consta- 
ble to  whom  the  venire  in  said  cause  was  delivered,  having  duly 
returned  said  venire,  with  the  panel  of  jurors  by  him  summoned, 
annexed,  and  the  said  Strong  being  one  of  the  jurors  named  in 


AND  PROCEEDINGS.  241 

said  panel  and  returned  as  being  so  summoned.     Given  under 
my  hand,  at  Oxford,  June  IStli,  1849. 

David  Lokg,  Justice. 

If  the  Justice  imposes  the  fine,  he  is  required  to  enter  in  his 
docket,  a  minute  of  the  conviction  and  of  the  cause  thereof;  and 
the  same  is  then  to  be  deemed  a  judgment  at  the  suit  of  the  over- 
seers of  the  poor  of  the  town.     (Sec.  87.) 

form  of  docket  entry. 

Overseers  op  the  Poor  of  ] 

THE  Town  of  Oxford        ' 

against  | 

Henry  Strong.  J 

On  this  twelfth  day  of  June,  eighten  hundred  and  forty-nine, 
Henry  strong  is  convicted  before  me,  for  not  having  appeared 
before  me  as  a  juror,  at  my  office,  on  the  10th  day  of  June,  in- 
stant, for  the  trial  of  a  cause  depending  before  me  and  then  and 
there  to  be  tried,  wherein  John  Doe  was  plaintiff'  and  Richard 
Roe,  defendant,  the  said  action  arising  on  contract ;  it  appear- 
ing to  me,  by  the  official  return  of  the  constable  to  whom  the 
venire  in  said  cause  was  delivered,  and  his  panel  thereto  an- 
nexed, that  the  said  Henry  Strong  was  duly  summoned  to  at- 
tend before  me  as  a  juror,  at  the  time  and  place  last  aforesaid  ; 
and  the  said  Henry  Strong  having  this  day  personally  appeared 
before  me,  and  by  me  having  been  required  to  show  cause  or 
excuse  against  the  imposition  of  a  fine  for  his  said  default,  and 
having  opportunity  of  being  heard,  (fcc,  and  no  reasonable  cause 
or  excuse  having  been  shown,  the  said  John  is  convicted  as 
aforesaid  ;  and  I  adjudge  and  determine  that  said  John  Doe  pay 
a  fine  for  his  default  aforesaid,  of  five  dollars,  to  be  levied  for 
the  use  of  the  poor  of  the  town,  and  also  two  dollars  costs  at- 
tending the  prosecution  for  the  imposition  of  said  fine,  according 
to  the  form  and  eflect  of  the  statute,  in  such  case  made  and  pro- 
vided. 

If  the  fine  and  costs  are  not  paid,  the  Justice  is  required  to 
issue  an  execution  forthwith. 

form  of  the  execution. 

Town  of  Oxford^  ss. 

To  any  constable  of  the  county  of  Chenango,  Greeting : 
Whereas,  Henry  Strong  has  been  this  day  duly  convicted  be- 

16 


242  MISCELLANEOUS  PROVISIONS 

fore  me,  the  midernamed  Justice,  for  not  appearing  as  a  juror 
on  the  tenth  day  of  June,  instant,  at  my  office  in  Oxford,  afore- 
said, in  a  certain  cause  depending  before  me,  and  then  and  there 
appointed  to  be  tried,  wherein  John  Doe  was  plaintiff",  and  Rich- 
ard Roe,  defendant,  the  said  action  arising  on  contract,  the  said 
Henry  Strong  having  been  duly  summoned  to  attend  as  such 
juror,  at  the  time  and  place  aforesaid.  And  whereas,  upon  such 
conviction,  I  did  adjudge  and  determine  that  said  Henry  Strong 
pay  a  fine  of  five  dollars,  to  be  levied  for  the  use  of  the  poor  of 
said  town,  and  also  the  sum  of  two  dollars  costs  attending  the 
prosecution  for  the  imposition  of  said  fine,  &c.  All  things  in 
relation  to  which  conviction  and  adjudication  will  appear  by 
reference  to  the  docket  entry  thereof,  remaining  before  me.  You 
are,  therefore  conmianded,  in  the  name  of  the  people  of  the  state 
of  New  York,  to  levy  the  said  fine  and  costs  of  the  goods  and 
chattels  of  the  said  Henry  Strong ;  and  for  want  thereof,  to  take 
and  convey  him  to  the  jail  of  the  county  there  to  remain  until 
he  shall  pay  said  fine  and  costs  ;  and  the  keeper  of  said  jail  is  re- 
quired to  keep  the  said  Henry  Strong  in  close  custody  in  said 
jail,  until  the  fine  and  costs  be  paid,  but  such  imprisonment  is 
not  to  exceed  thirty  days.  Given  under  my  hand,  at  Oxford, 
June  20th,  1849. 

David  Long,  Justice. 

When  a  witness  attending  before  a  Justice,  in  a  cause,  refuses 
to  be  SAvorn  ;  or,  being  sworn,  refuses  to  answer  any  pertinent 
and  proper  question  ;  and  the  party  at  whose  instance  he  at- 
tended, shall  make  oath  that  the  testimony  of  such  vv'itness  is  so 
far  material,  that  without  it  he  cannot  safely  proceed  to  the  trial 
of  the  cause,  the  Justice  may  commit  the  witness  to  jail,  there  to 
be  confined  until  he  shall  submit  to  be  sworn,  or  to  answer. 
(2  R.  S.  369,  sec.  291.) 

J'ORM    OF    WARRANT. 

Town  of  Oxford,  ss. 

To  any  consta1)le  of  tlic  county  of  Chenango,  Greeting  : 

Whereas,  a  court  is  now,  to  wit,  the  10th  day  of  June,  1819, 

held  before  me,  the  undernamed  Justice  of  the  Peace  at  Oxford, 

aforesaid,  for  the  (rial  of  an  issue  joined  between  .Tolm  Doe, 

plaintiff*,  and  Richard  Roe,  defendant,  the  said  plaintiff  having 


AND  PROCEEDINGS.  243 

complained  upon  a  promissory  note,  payable  to  him,  and  pur- 
porting to  have  been  drawn  by  the  defendant,  the  defendant 
having  in  his  answer,  denied  the  drawing  of  such  a  note  ;  and 
during  said  trial,  the  said  plaintiff  called  as  a  witness  in  his  be- 
half, Peter  Brown,  who  was  then  attending  before  me  in  said  court 
as  a  witness  in  behalf  of  said  plaintiff;  and  I  thereupon  required 
of  the  said  Peter  Brown  that  he  should  be  sworn  as  such  wit- 
ness, but  he  refused  to  be  sworn  as  a  witness  in  said  cause,  in 
any  form  prescribed  by  law,  [or,  "  And  the  said  Peter  Brown 
consented  to  be,  and  was,  by  me  duly  sworn  as  a  witness  in  said 
cause,  and  thereupon  the  said  plaintiff  presented  the  note  com- 
plained on  as  aforesaid,  and  to  which  the  name  of  Peter  Brown 
was  set  as  a  subscribing  witness,  and  asked  the  said  witness 
whether  he  saw  the  defendant  execute  the  said  note,  and 
whether  he,  the  witness,  set  his  name  thereto  as  a  subscribing 
witness  1  To  which  question,  the  said  Peter  Brown  refused  tc' 
give  an  answer,  nor  would  he  answer  the  same,  although  there- 
unto by  me  specially  required."]  Whereupon  the  said  John 
Doe  made  oath  before  me,  that  the  testimony  of  the  said  Peter 
Brown  is  so  far  material,  that  without  it,  he  cannot  safely  pro- 
ceed in  the  trial  of  said  cause.  You  are  therefore  hereby  com- 
manded, in  the  name  of  the  people  of  the  state  of  New  York,  to 
take  and  convey  the  said  Peter  Brown  to  the  common  jail  of  said 
county,  the  keeper  whereof  is  required  to  detain  him  in  close 
confinement  in  said  jail,  until  he  shall  submit  to  be  sworn,  [or 
to  testify,]  as  lawfully  required  in  said  cause.  Given  under  my 
hand,  this  10th  day  of  June,  1849. 

David  Long,  Justice. 

5.  Surety  for  the  Peace. 

Surety  for  the  peace  is  the  being  bound  with  one  or  more 
sureties  in  a  recognizance  or  obligation  to  the  people  of  the 
state,  entered  on  record,  and  taken  in  some  court,  or  by  some 
judicial  officer,  whereby  the  parties  acknowledge  themselves 
indebted  to  the  people  in  a  certain  sum,  with  a  condition  to  be 
void  and  of  none  effect,  if  the  party  complained  of  shall  appear 
in  court,  at  such  a  time,  and  not  depart  the  same  without  leave, 
and  in  the  meanwhile  keep  the  peace  towards  the  people  of  the 
state,  and  especially  towards  the  person  requiring  the  security. 
(4  Blk.  Com.  252.     Barb.  Cr.  Law,  443.) 

A  Justice  of  the  Peace  has  power  to  cause  to  be  kept  all  laws. 


244  MISCELLANEOUS  PROVISIONS 

made  for  the  preservation  of  the  peace  ;  and  in  the  execution  of 
that  power,  to  require  persons  to  give  security  to  keep  the  peace. 
(2R.S.  791.) 

Whenever  complaint  is  made  in  writing,  and  on  oath,  to  a 
Justice  of  the  Peace,  that  any  person  has  threatened  to  commit 
any  offence  against  the  person  or  property  of  another,  it  is  made 
the  duty  of  the  Justice  to  examine  the  complainant,  and  any 
witnesses  who  may  be  produced,  on  oath  ;  to  reduce  such  ex- 
amination to  writing,  and  to  cause  the  same  to  be  subscribed 
by  the  parties  so  examined.     (Id.) 

FORM    OF    COMPLAINT. 

Chenango  County^  ss. — Henry  Brown,  being  duly  sworn 
before  David  Long,  one  of  the  Justices  of  the  Peace  of  Oxford, 
in  said  county,  makes  oath  and  complains,  that  John  Smith  did 
this  day,  at  Oxford  aforesaid,  threaten  that  he  would  hereafter 
tear  down  the  fences  of  the  said  Henry  Brown  on  his  farm  in 
Oxford  aforesaid.  [Or  other  threat  to  commit  an  offence  against 
the  person  or  property.] 

Deponent  further  says,  that  in  consequence  of  said  threat,  he 
has  jnst  reason  to  fear,  and  he  does  fear,  that  said  John  Smith 
will  commit  the  ofience  so  by  liini  threatened. 

Henry  Brown. 
Subscribed  and  sworn,  June  lOth,  1849, 
before  me, 

David  Long,  Justice. 

The  Justice  is  required  to  examine  the  complainant,  and  any 
witnesses  who  may  be  produced,  on  oath  ;  and  he  should  ex- 
amine the  witnesses  as  well  in  behalf  of  the  party  complained 
of,  if  any  appear,  as  those  in  favor  of  the  complainant. 

FORM    OF    A    memorandum    OF    THE    TESTIMONY. 

CJicnungo  County^  ss. — The  examination  and  testimony,  on 
oath,  of  Henry  lirown,  John  Doe,  Richard  Roe  and  Peter  Pray, 
touching  the  complaint  of  Henry  Brown  against  John  Smith, 
that  the  said  John  Smith,  <fcc. — [here  set  forth  the  complaint.] 

The  said  Henry  Brown  saith,  <fec. — [liere  set  forth  the  mate- 
rial parts  of  the  testimony  of  each  witness  ;  and  let  each  witness 
subscribe  the  paragraph  containing  his  evidence.] 


AND  PROCEEDINGS.  245 

Taken  and  subscribed  at  Oxford,  June  10th,  1849,  before  me, 

David  Long,  Justice. 

If  it  appear  from  the  examination  that  there  is  just  reason  to 
fear  the  commission  of  any  such  offence  by  the  person  com- 
plained of,  the  Justice  must  issue  his  warrant  reciting  the  com- 
plaint, and  commanding  the  officer  to  whom  it  is  directed, 
forthwith  to  apprehend  the  person  so  complained  of,  and  bring 
him  before  the  Justice.     (2  R.  S.  791.) 

FORM    OF    WARRANT. 

Chenango  County,  ss. — 

To  any  Constable  of  said  County,  Greeting : 

Whereas,  Henry  Brown  has  this  day  made  complaint  in 
writing  and  on  oath,  before  me,  the  undernamed  Justice  of  the 
Peace  of  Oxford,  in  said  county,  that  John  Smith,  (fcc. — [here 
set  forth  the  complaint] — and  has  demanded  sureties  of  the 
peace  against  the  said  John  Smith.  And  whereas,  I  have 
examined  the  said  Henry  Brown,  and  John  Doe,  Richard  Roe, 
and  Peter  Pray,  witnesses  produced  before  me,  on  oath,  touching 
said  complaint,  which  examination  was  by  me  reduced  to  wri- 
tmg,  and  duly  subscribed ;  and  it  appearing  to  mo,  from  such 
examination,  that  there  is  just  reason  to  fear  the  commission  of 
said  offence  by  the  said  John  Smith  :  You  are,  therefore, 
hereby  commanded,  in  the  name  of  the  people  of  the  state  of 
New  York,  forthwith  to  apprehend  the  said  John  Smith,  and 
bring  him  before  me,  at  my  office,  in  Oxford  aforesaid,  to  be 
dealt  with  in  the  premises  according  to  law. 

Given  under  my  hand  at  Oxford,  June  10th,  1849. 

David  Long,  Justice. 

Upon  the  person  being  brought  before  the  Justice,  he  may  be 
required  to  enter  into  a  recognizance  in  such  sum,  not  exceeding 
one  thousand  dollars,  as  the  Justice  shall  direct,  with  one  or 
more  sufficient  sureties,  to  appear  at  the  next  Court  of  Sessions 
of  the  county,  and  not  to  depart  the  same  without  leave,  and 
in  the  meanwhile  to  keep  the  peace  towards  the  people  of  the 
state,  and  particularly  towards  the  person  requiring  the  secu- 
rity.    (2  R.  S.  791.) 


\ 


246  MISCELLANEOUS  PROVISIONS 

FORM    OF    THE    RECOGNIZANCE. 

Chenango  Conuty,  ss. — We,  John  Smith  and  Richard  Roe, 
of  Chenango  in  said  county,  acknowledge  ourselves  to  owe  to 
the  people  of  the  state  of  New  York,  the  sum  of  two  hundred 
dollars,  to  be  levied  of  our  several  goods  and  chattels,  lands  and 
tenements,  to  the  use  of  said  people,  if  default  shall  be  made  in 
the  condition  following : 

The  condition  of  this  recognizance  is  such,  that  whereas 
Henry  Brown  has  this  day  made  complaint  in  writing  and  on 
oath,  before  David  Long,  Justice  of  the  Peace  of  Oxford,  that 
John  Smith,  <fcc. — [here  set  forth  the  complaint] — and  has  de- 
manded sureties  of  the  peace  of  the  said  John  Smith,  and  the 
said  Justice  having  examined  the  said  Henry  Brown,  and  wit- 
nesses produced,  on  oath,  touching  said  complaint ;  and  upon 
such  examination  having  adjudged  that  there  is  just  reason  to 
fear  the  commission  of  said  offence  by  said  John  Smith  :  Now, 
therefore,  if  the'said  John  Smith  shall  appear  at  the  next  Court 
of  Sessions,  to  be  held  in  said  county,  and  not  depart  the  same 
without  leave  ;  and  shall,  in  the  meanwhile,  keep  the  peace 
towards  the  people  of  this  state,  and  particularly  towards  the 
said  Henry  Brown  ;  then  this'recognizance  is  to  be  void,  other- 
wise of  force. 

John  Smith. 
Richard  Roe. 
Taken,  subscribed  and  acknowledged. 

June  10th,  1849,  before  me, 

David  Long,  Justice. 

The  recognizance  must  bo  transmitted  by  the  Justice  to  the 
:iext  Court  of  Sessions  of  the  county.     (2  R.  S.  791.) 

Upon  entering  into  the  recognizance,  the  party  complained 
of  must  be  discharged.  If  he  refuses  to  find  the  required  secu- 
rity, the  Justice  must  commit  him  to  prison  until  he  find  the 
same,  specifying  in  the  warrant  the  cause  of  commitment,  and 
ihc  sum  in  which  the  security  was  required.     (Id.) 

FORM    OF    WARRANT    TO    COMMIT. 

Chenango  County^  ss  : — 

^I'o  any  Constable  of  said  County,  Greeting: 
"Whereas,  Henry   Brown  has  this  day  made  complaint  in 


AND  PROCEEDINGS.  247 

writing  and  on  oath  before  me,  the  undernamed  Justice  of  the 
Peace  of  Oxford,  in  said  county,  that  John  Smith,  &c. — [here 
set  forth  the  residue  of  the  recital,  as  in  the  foregoing  form  of  a 
warrant] — and  the  said  John  Smith,  upon  being  brought  before 
me,  was  required  to  enter  into  recognizance  in  the  sum  of  two 
hundred  dollars,  with  one  or  more  sufficient  sureties,  conditioned 
to  appear  at  the  next  Court  of  Sessions  of  said  county,  and  not 
to  depart  the  same  without  leave  ;  and  in  the  meanwhile,  to 
keep  the  peace  towards  the  people  of  this  state,  and  particularly 
towards  the  said  Henry  Brown  ;  and  the  said  John  Smith 
having  refused  to  comply  with  the  said  requirement :  You  are, 
therefore,  hereby  commanded,  in  the  name  of  the  people  of  the 
state  of  New  York,  forthwith  to  convey  the  said  John  Smith  to 
the  common  jail  of  said  county,  and  him  deliver  to  the  keeper 
thereof;  and  the  said  keeper  is  required  to  receive  the  said 
John  Smith  into  his  custody  in  said  jail,  and  him  there  safely 
keep,  until  he  shall  enter  into  recognizance  as  aforesaid,  or  be 
thence  discharged  according  to  law. 

Given  under  my  hand  at  Oxford,  June  10th,  1849. 

David  Long,  Justice. 

A  person  committed  for  not  finding  sureties  of  the  peace,  may 
be  discharged  by  any  two  Justices  of  the  Peace,  upon  giving 
such  security  as  was  originally  required. 

FORM    OF    DISCHARGE. 

Chenapgo  County,  ss. — Whereas,  John  Smith  was  lately 
committed  to  your  custody,  upon  the  warrant  of  David  Long, 
one  of  the  Justices  of  the  Peace  of  Oxford,  in  said  county,  for 
his  not  entering  into  a  recognizance,  in  the  sum  of  two  hundred 
dollars,  with  one  or  more  sufficient  sureties,  conditioned  to  ap- 
pear at  the  next  Court  of  Sessions,  to  be  held  in  said  county,  and 
not  depart  without  leave,  and,  in  the  mean  time,  to  keep  the 
peace  towards  the  people  of  this  state,  and  particularly  towards 
Henry  Brown,  &.c. ;  and  the  said  John  Smith  having  this  day 
entered  into  the  required  recognizance,  with  surety :  You  are, 
therefore,  hereby  required,  if  the  said  John  Smith  do  remain  in 
your  custody,  in  said  jail,  for  the  cause  aforesaid,  and  no  other 


248  MISCELLANEOUS  PROVISIONS 

to  forbear  to  detain  hitn  longer  for  the  cause  aforesaid,  but  to 
suffer  him,  forthwith,  to  go  at  large. 

Given  under  our  hands,  at  Oxford,  June  15th,  1949. 

Alvin  Kent, 
William  Roberts, 

Justices  of  the  Peace. 

Every  person  who,  in  the  presence  of  a  Justice  of  the  Peace, 
shall  make  any  affray,  or  threaten  to  kill  or  beat  another,  or  to 
commit  any  offence  against  his  person  or  property ;  and  all  per- 
sons who,  in  the  presence  of  the  Justice,  shall  contend,  with  hot 
and  angry  words,  may  be  ordered  by  the  Justice,  without  any 
other  proof,  to  give  such  security  as  is  above  specified  ;  and,  in 
case  of  refusal,  may  be  committed  in  the  manner  herein  before 
mentioned.     (2  R.  S.  791.) 

In  this  case,  the  recitals  in  the  foregoing  forms  of  a  recogni- 
zance and  warrant  to  commit,  should  be  varied  by  substituting 
recitals  like  the  following  : 

"  Whereas,  John  Smith  did,  this  day^  iji  the  presence  of  the 
undernamed  Justice  of  the  Peace,  of  Oxford  aforesaid,  threaten 
to  heat  Henry  Brown,  and  I  did,  thereupon,  ivithout  any  other 
proof,  require  the  said  John  Smith  to  e?iter  into  a  recognizance 
with  surety,  which  requirement  is  herewith  complied  ivitli,"  i^'c. 

"  Whereas,  John  Smith  did,  this  day,  in  the  presence  of  me, 
the  undernamed  Justice  of  the  Peace,  of  Oxford  aforesaid, 
threaten  to  beat  Henry  Brown,  and  I  did,  thereupon,  without 
any  other  proof,  require  the  said  John  Smith  to  enter  into  a  re- 
cognizance in  the  sum  of  two  hundred  dollars,  with  one  or  more 
sufficient  sureties,"  tyc. 

No  security  to  keep  the  peace,  or  to  be  of  good  behavior,  can 
be  required,  nor  can  any  person  be  committed  to  prison  for  not 
giving  the  same  in  any  case,  except  such  as  are  prescribed  or 
authorized  by  statute.     {2  R.  S.  792,  sec.  14.) 

All  persons  whatever,  being  of  sane  memory,  whether  natu- 
ral born  citizens,  or  aliens,  have  a  right  to  demand  surety  to 
keep  the  peace.  Wives  may  demand  it  against  their  husbands, 
and  husbands  against  their  wives.     (1  Hawk.  P.  C.  ch.  G8.) 

(').   Of  Weights  and  Measures. 

The  statute  declares,  that  there  sliall  be  but  one  standard  of 
measure  of  length  and  surface,  and  one   measure  of  capacity 


AND  PROCEEDINGS.  249 

throughout  the  state.  (Vide  1  R.  S.  775  to  780.)  The  statute 
directs  the  manner  in  which  uniform  standards  of  weights  and 
measures  shall  be  constructed,  and  copies  thereof  deposited  in  the 
several  counties  for  general  use. 

The  unit  or  standard  measure  of  length  and  surface,  from 
whence  all  other  measures  of  extension,  whether  they  be  lineal, 
superficial,  or  solid,  is  derived  or  ascertained,  is  the  yard  of  three 
feet,  or  thirty-six  inches. 

The  unit,  or  standard  of  weight,  from  which  all  other  weights 
are  derived  and  ascertained,  is  the  pound  averdupois. 

The  unit,  or  standard  of  measures  of  capacity,  as  well  for  li- 
quids as  for  dry  commodities,  not  measured  by  the  heaped  mea- 
sure, is  the  gallon,  of  which  there  are  two  kinds  :  one,  for  the 
measure  of  all  liquids,  and  one  for  the  measure  of  all  other  sub- 
stances not  measured  by  heaped  measure,  the  first  of  which  is 
denominated  the  gallon  for  liquid  measures,  and  the  second,  the 
gallon  for  dry  measures. 

All  other  measures  of  capacity  for  liquids  must  be  derived 
from  the  liquid  gallon,  by  continual  division  by  the  number 
two. 

All  other  measures  of  capacity,  for  substances  not  being  li- 
quids, must  be  derived  from  the  dry  gallon  by  continual  multi- 
plication by  the  number  two  in  the  ascending  scale ;  and  by 
continual  division  by  the  same  number,  in  the  descending 
scale. 

The  standard  measure  of  capacity  for  coal,  ashes,  marl,  ma- 
nure, Indian  corn  in  the  ear,  fruit,  and  roots  of  every  kind,  and 
for  all  other  commodities  commonly  sold  by  heaped  measure,  is 
the  bushel  ;  and  the  measures  used  to  measure  such  commodi- 
ties, must  be  made  round,  with  a  plain  and  even  bottom,  and  be 
of  the  following  diameters  at  top,  measured  from  outside  to  out- 
side :  the  bushel,  nineteen  and  a-half  inches ;  the  half  bushel, 
fifteen  and  a-half  inches  ;  and  the  peck,  twelve  and  a  third 
inches. 

All  commodities  sold  by  heaped  measure,  must  be  duly  heaped 
up  in  the  form  of  a  cone  ;  the  outside  of  the  measure  by  which 
the  same  is  measured,  to  be  the  extremity  of  the  base  of  such 
cone,  and  such  cone  to  be  as  high  as  the  articles  measured  will 
admit. 

Whenever  wheat,  rye,  Indian  corn,  barley  or  oats,  are  sold  by 
the  bushel,  and  no  special  agreement,  as  to  the  measurement  or 


250  MISCELLANEOUS  PROVISIONS 

weight  thereof,  is  made,  by  the  parties,  the  means  thereof,  must 
be  ascertained  by  weight,  and  must  be  computed  as  follows  : 

Sixty  pounds  for  a  bushel  of  wheat. 

Fifty-six  pounds  for  a  bushel  of  rye  or  Indian  corn. 

Forty-eight  pounds  for  a  bushel  of  barley. 

Thirty-two' pounds  for  a  bushel  of  oats. 

It  is  provided,  that  the  standard  measure,  or  capacity  for  bran 
and  shorts,  shall  be  forty  quarts  to  the  bushel.  The  measure 
used  for  measuring  said  commodities  must  be  made  round,  with 
a  plain  or  even  bottom,  and  be  thirteen  inches  and  a-half  in  dia- 
meter in  the  clear,  at  the  top,  and  fifteen  inches  and  a-half  in 
diameter  in  the  clear,  at  the  bottom,  and  of  sufficient  depth  to 
contain  the  aforesaid  quantity,  when  stricken  with  a  round 
straight  stick  or  roller,  of  uniform  diameter. 

All  contracts  made  within  the  state,  for  any  work  to  be  done, 
or  for  any  thing  to  be  sold,  delivered,  done  or  agreed  for,  by 
weight  or  measure,  must  be  taken  and  construed  to  be  made,  ac- 
cording to  the  standard  weights  and  measures. 

If  any  person  or  persons  use  any  weights,  measures,  or  beams, 
in  weighing  or  measuring,  not  conformable  to  the  legal  stan- 
dards whereby  any  purchaser  of  any  commodity,  or  article  of 
trade  or  traffic,  is  injured  or  defrauded,  such  purchaser  may 
maintain  an  action  against  the  offender ;  and  if  judgment  be 
rendered  for  the  plaintiff,  he  will  recover  treble  damages,  with 
costs  of  suit.     (Vide  1  R.  S.  779.) 

7.  Computation  of  Time. 

Whenever  the  term  "  year,"  or  "  years,"  is  used  in  any  sta- 
tute, deed,  or  contract,  or  in  any  public  or  private  instrument, 
the  year  intended  must  be  taken  to  consist  of  three  hundred  and 
sixty-five  days ;  a  half  year,  of  one  hundred  and  eighty-two 
days  ;  and  a  quarter  of  a  year,  of  ninety-one  days  ;  and  the  ad- 
ded day  of  a  leap  year,  and  the  day  immediately  preceding,  if 
they  shall  occur  in  any  period  so  to  be  computed,  shall  be  reck- 
oned together  as  one  day.  Whenever  the  word  "  month,"  or 
"  months,"  is  used  in  any  statute,  act,  deed,  verbal  or  written 
contracts,  or  any  public  or  private  instrument  whatever,  it  must 
be  construed  to  mean  a  calendar,  and  not  a  lunar  month  ;  un- 
less otherwise  expressed,     (1  R.  S.  77'1.) 

For  the  purpose  of  calculating  interest,  a  month  is  to  be  consid- 
ered the  twelfth  part  of  a  year,  and  as  consisting  of  thirty  days ; 


AND  PROCEEDINGS.  251 

and  interest  for  any  number  of  days  less  than  a  month,  must  be 
estimated  by  the  proportion  which  such  number  of  days  bears 
to  thirty.     (2  R.  S.  58.) 

Wlien  the  computation  of  time  in  a  statute  is  to  be  after  date 
o^  from  an  act  done,  the  first  day,  that  is,  the  day  of  the  date,  or 
the  day  when  the  act  is  done,  must  be  excluded.  Thus  an  exe- 
cution, dated  May  7th,  and  returnable  thirty  days  from  the  date, 
would  continue  in  force  until  after  the  Gth  of  June  ;  and  in  com- 
puting the  time  allowed  for  service  on  a  Justice  of  a  notice  of  ap- 
peal, it  has  been  held  that  the  day  of  rendering  the  judgment 
must  be  excluded.     (2  Cow.  518  and  605.) 

In  the  space  of  a  day,  all  the  twenty-four  hours  are  usually 
reckoned,  and  the  law  rejects  all  fractions  of  a  day,  so  as  to  avoid 
confusion,  (2  Blk.  Com.  141.)  And  in  general,  when  a  person 
is  bound  to  pay  money,  or  do  any  other  act  on  a  certain  day,  he 
has  till  twelve  at  night  of  that  day,  after  which  the  following 
day  commences.     (Id.) 

8.   Of  the  Justice's  Docket. 

The  statutes  require  that  every  Justice  of  the  Peace  shall  keep 
a  book  in  which  he  shall  enter, 

1.  The  title  of  all  causes  commenced  before  him  ; 

2.  The  time  when  the  first  process  was  issued  against  the  de- 
fendant, and  the  particular  process  issued  ; 

3.  The  time  when  the  parties  appeared  before  him,  either 
without  process  or  upon  the  return  of  process  ; 

4.  Where  the  pleadings  are  made  orally,  a  concise  statement 
of  the  complaint  of  the  plaintiff,  the  answer  of  the  defendant,  the 
further  pleadings  of  the  parties,  if  any,  and  the  issue  joined  ; 

5.  Every  adjournment,  stating  on  whose  motion,  and  to  what 
time  and  place  ; 

6.  The  issuing  of  a  venire,  stating  at  whose  request,  and  the 
time  and  place  of  its  return ; 

7.  The  time  when  a  trial  Avas  had,  the  names  of  the  jurors 
returned  summoned  who  did  not  appear,  and  the  fines  imposed 
on  them,  if  any  ; 

8.  The  names  of  the  jurors  who  appeared,  and  of  the  jurors 
who  were  sworn  ;  the  names  of  the  witnesses  sworn  at  the  re- 
quest of  either  party,  stating  at  whose  request ;  the  objections,  if 


252  MISCELLANEOUS  PROVISIONS 

any  made  to  the  competency  of  a  witness,  and  the  decision 
thereon ; 

9.  The  verdict  of  the  jury,  and  when  received  ; 

10.  The  judgment  rendered  by  the  Justice,  and  the  time  of 
rendering  the  same ; 

11.  The  time  of  issuing  execution,  and  the  name  of  the  offi- 
cer to  whom  delivered  ;  and  if  issued  upon  the  apphcation  of 
any  party  before  the  time  when  the  same  should  regularly  issue, 
such  fact  shall  be  noted,  and  the  nature  of  the  proof  given  ; 

12.  The  return  of  every  execution,  and  when  made,  and  every 
renewal  of  an  execution  made  by  him,  with  the  date  of  such  re- 
newal ; 

13.  The  fact  of  his  having  given  a  transcript  of  the  judgment 
to  be  filed  in  the  clerk's  office,  and  the  time  when  the  same  was 
given  ; 

14.  The  fact  of  an  appeal  having  been  made  from  any  judg- 
ment rendered  by  him,  and  the  time  when  made.  (2  R.  S.  363, 
sec.  249.) 

The  above  items  are  to  be  entered  under  the  title  of  each 
cause  to  which  they  relate,  and  in  addition,  the  Justice  may  en- 
ter any  other  proceeding  before  him  in  the  cause,  which  he  may 
think  useful.     (2  R.  S.  364,  sec.  250.) 

In  addition  to  the  entries  required  by  statute  to  be  made  in 
the  docket,  it  will  be  very  necessary  to  enter  the  time  when  the 
process  was  served,  the  manner  of  service,  the  constable  by 
whom  it  was  served,  and  his  fees.  It  would  also  be  useful  to 
enter  the  issuing  of  subposnas,  and  for  which  party.  Also  the 
name  of  the  constable  by  whom  the  venire  was  served.  These 
several  entries  will  be  useful  in  making  up  the  costs. 


justice's  docket. 


John  Doe 

against 

RiciiAiii)  Roe. 


June  1  St,  1819.  Issued  summons,  returnable  13th  instant,  at 
2  p.  M.  at  my  ofllce,  June  13th,  summons  returned  personally 
served  by  William  Cooke,  constable,  on  the  4th  inst.,  fees  12^ 
cents.  Parties  appear  -plaintifl',  by  T.  Jones,  who  swears  to 
his  authority  ;  dcfendiinl  in  person.     Plaintiff  complains  on  a 


AND  PROCEEDINGS. 


253 


promissory  note  from  defendant  to  Iiim,  dated  1st  January,  1848, 
for  $25  00  at  sixty  days,  with  interest.  Defendant  denies  the 
making  of  the  note,  and  answers  that  plaintiff  is  indebted  to  him 
on  an  account  for  goods  sold,  and  for  work  and  labor.  Cause 
adjourned  on  plaintiff's  motion,  to  2 1st  instant,  at  2  p.  m.,  at  my 
oiRce.  Issued  venire  at  plaintiff's  request,  returnable  at  the 
same  time  and  place. 

June  21st.  Parties  appear  pursuant  to  adjournment  and  try 
cause.  Venire  returned  by  William  Cooke,  constable.  The 
following  jurors  returned  summoned  did  not  appear : — Robert 
Boyd,  Samuel  Pierson,  and  Joshua  Day. 

The  following  jurors  appeard,  viz  :  Alfred  Merill,  John  Stone, 
Henry  Brown,  James  Moore,  Edward  Strong,  Albert  Conway, 
Thomas  Doyle,  Jacob  Green,  and  Peter  Doolittle ;  and  the  fol- 
lowing jurors  were  sworn,  viz  :  John  Stone,  Henry  Brown,  Ed- 
ward Strong,  Thomas  Doyle,  James  Moore,  Albert  Conway. 
Henry  Peters,  Thomas  Noakes,  and  Peter  Pray,  sworn  as  wit- 
nesses for  the  plaintiff.  Alfred  Somers,  sworn  as  a  witness  for 
the  defendant. 

After  hearing  the  testimony,  the  arguments  of  the  respective 
parties,  and  the  Justice's  charge,  the  jury  retired  under  the  care 
of  William  Cooke,  constable,  duly  sworn  for  that  purpose,  and 
found  a  verdict  in  favor  of  the  plaintiff,  for  ten  dollars  damages 
which  was  received  on  the  day  last  mentioned.  'Whereupon  I 
immediately  rendered  judgment  for 

Damages,       -----  |10  00 

Costs,  -  -  -  -  -  3  56 


$13  56 

June  21st.  Execution  issued  to  William  Cooke,  constable,  on 
the  application  of  plaintiff. 
June  29.     Execution  returned  satisfied. 

ENTRY  OF  JUDGMENT  BY  CONFESSION,  NOT  EXCEEDING  FIFTY 

DOLLARS. 

John  Smith      i 

agaifist  > 

Peter  Pray.     ) 

June  1st,  1849.     Parties  appear,  and  judgment  entered  against 


254  MISCELLANEOUS  PROVISIONS 

the  defendant,  on  a  demand  arising  upon  contract,  on  his  con- 
fession in  writing,  for 

Damages, $30  00 

Costs,  -  -  -  -  .        -         47 


$30  47 


same  for  a  sum  exceeding  fifty  dollars. 

John  Doe         ) 
against  \ 

Richard  Roe.    j 
June  1st,  1849.     Parties  appear,  and  judgment  entered  against 
the  defendant  on  a  demand  arising  on  contract,  on  his  confes- 
sion in  writing,  accompanied  by  the  affidavits  of  the  plaintiff  and 
defendant,  as  required  by  the  statute,  for 

Damages,         -----         $250  00 
Costs,  _  .  .  -  .  62 


$250  62 


entries  in  docket  when  the  defendant  does  not 

APPEAR. 

John  Stone      ') 
against  > 

Joseph  Day.      } 

June  1st,  1849. — Issued  summons,  returnable  13th  instant,  at 
2,  p.  M.,  at  my  office.  June  13th. — Summons  returned  perso- 
nally served,  by  WilHam  Cooke,  const.,  on  the  6th  inst, — fees, 
twelve  and  a-half  cts.  Plaintiff  appears ;  defendant  does  not 
appear.  Plaintiff  complains,  on  a  promissory  note  from  defen- 
dant to  bim,  dated  January  1st,  1849,  for  $15  00,  at  thirty  days, 
with  interest.  Adjourned,  on  plaintiff's  motion,  to  ISlh  instant, 
at  2,  p.  M.,  at  my  office,  and  issued  subpoena  for  plaintiff. 

June  18. — Plaintiff  appears  ;  defendant  does  not  appear.  Ja- 
cob Doolittle,  sworn  as  a  witness  for  plaintiff,  and  judgment 
rendered  against  the  defendant,  for  $15  35,  damages,  and  $1  25 
costs. 

Damages, $15  35 

Costs, 1  25 

$16  60 


AND  PROCEEDINGS.  255 

TliG  Justice  should  be  careful  to  have  all  the  entries  made  in 
liis  docket  accurately,  and  conformably  to  the  truth.  This  is  the 
more  important,  as  his  docket,  or  a  transcript  from  it,  is  evidence 
of  the  facts  which  it  contains. 

The  Justice  is  required,  by  statute,  to  keep  an  alphabetical 
index  of  all  judgments  entered  in  his  docket  book  in  the  course 
of  any  judicial  proceeding  had  before  him,  in  which  must  be  in- 
serted the  names  of  the  parties  to  each  judgment,  and  the  page 
of  his  book  where  such  judgment  is  entered.     (2.  R.  S.  366.) 

Of  the  Deposite  of  Books  and  Papers  with  the  Toimi  Clerk. 

In  case  any  Justice  shall  remove  out  of  the  town  in  which  he 
was  elected,  before  or  after  his  term  of  office  expires,  he  shall  de- 
posite, with  the  town  clerk  of  such  town,  all  the  books  and  pa- 
pers in  the  custody  of  such  Justice,  relating  to  any  cause  or 
matter  which  shall  have  been  heard  by  him,  or  relating  to 
any  proceeding  or  cause  which  shall  have  been  commenced 
before  him. 

Whenever  any  Justice  shall  be  removed  from  office,  he 
shall,  within  ten  days  after  receiving  notice  of  such  removal, 
and  upon  the  demand  of  the  town  clerk,  deliver  to  such  clerk, 
all  the  books  and  papers  in  the  custody  of  such  Justice,  relating 
to  any  cause  or  matter  which  shall  have  been  heard  by  hin), 
or  relating  to  any  proceeding  or  cause  which  shall  have  been 
commenced  before  him. 

In  every  book  of  minutes  delivered  by  any  Justice  to  the 
town  clerk,  pursuant  to  the  foregoing  provisions,  in  which  he 
shall  iiave  kept  the  docket  of  any  judgments,  he  shall  enter  a 
certificate,  to  be  subscribed  by  him,  staling  that  the  judgments 
entered  in  such  book,  were  duly  rendered  as  therein  stated, 
and  that  the  amounts  appearing  by  such  book  to  be  due  on 
such  judgments  respectively,  have  not  been  paid  to  his  know- 
ledge. 

In  case  any  Justice  shall  die,  or  his  office  shall,  in  any  way, 
become  vacant,  and  any  books  or  papers  belonging  to  such  Jus- 
tice, in  his  official  capacity,  shall  come  to  the  hands  of  any  per- 
son, the  town  clerk  may  demand  and  receive  such  books  and 
papers,  from  the  person  having  the  same  iu.  his  possession. 

The   entries   contained   in   the   book   of  minutes    kept    by 
any  Justice,   and  by  him  delivered  to  the  clerk,  shall,  in  all 


256  MISCELLANEOUS  PROVISIONS,  &c. 

cases,  be  presumptive  evidence  of  the  facts  stated  in  such  en- 
tries, but  may  be  repelled  by  contrary  proof.     (2  R.  S.  366.) 

9,  Of  the  Abatenieni  of  Suits  by  Death. 

At  common  law,  the  death  of  one  of  two  or  more  plaintiffs 
or  defendants,  before  final  judgment,  abated  the  suit.  By  the 
Code,  no  action  shall  abate  by  the  death,  marriage,  or  other  dis- 
ability of  a  party,  or  by  the  transfer  of  any  interest  therein,  if 
the  cause  of  action  survive  or  continue.  (Code,  sec.  121.)  In 
case  of  death,  marriage,  or  other  disability  of  a  party,  the  court 
may  allow  the  action  to  be  continued  by  or  against  his  repre- 
sentative, or  successor  in  interest.  In  case  of  any  other  transfer 
of  interest,  the  action  shall  be  continued  in  the  name  of  the  ori- 
ginal party  ;  or  the  court  may  allow  the  person  to  whom  the 
transfer  is  made,  to  be  substituted  in  the  action,     (Id.) 

By  the  Revised  Statutes,  it  is  provided,  that  if,  in  any  action, 
there  be  two  or  more  plaintiffs,  and  one  or  more  of  them  shall 
die  before  final  judgment,  the  action  shall  not  thereby  be  abated, 
if  the  cause  of  action  survive  to  the  surviving  plaintiff  or  plain- 
tiffs ;  and  if  there  be  two  or  more  defendants,  and  one  or  more 
of  them  shall  die  before  final  judgment,  the  action  shall  not 
thereby  be  abated,  but  such  death  shall  be  suggested  on  the  re- 
cord, and  the  action  shall  proceed  at  the  suit  of  the  surviving 
plaintiff,  or  against  the  surviving  defendant.  An  entry  of  the 
death,  in  the  Justice's  docket,  would  be  a  sufficient  suggestion, 
on  the  record,  within  the  meaning  of  the  above  section.  In  ac- 
tions in  Justices'  Courts,  however,  it  is  presumed  the  death  of  a 
sole  plaintiff  or  defendant,  at  'any  time  before  judgment,  would 
abate  the  suit.     (2  R.  S.  486.) 

Where  an  action  is  authorized  or  directed  by  law,  to  be  brought 
by,  or  in  the  name  of  a  pubHc  officer,  or  by  any  trustee  appointed 
by  virtue  of  any  statute,  his  death  or  removal  shall  not  abate 
the  suit,  but  the  same  may  be  continued  by  his  successor,  who 
shall  be  substituted  for  that  purpose  by  the  court,  and  a  sugges- 
tion of  such  substitution  shall  be  entered  on  the  record.  (2  R. 
S.  485,  sec.  14.) 


CHAPTER    XIV. 


OF    ARBITRATIONS. 


This  chapter  embraces  the  following  subjects  : 

1.  Definition  of  Arbitration. 

2.  Who  may  submit  matters  in  controversy  to  Arbitrators. 

3.  What  claims  may  be  submitted  to  Arbitration. 

4.  Duty  of  Arbitrators  ;  how  sworn  ;  how  Witnesses  com- 

pelled to  appear  before  them,  and  swearing  of  Witnesses. 

5.  What  is  necessary  to  entitle  an  Award  to  be  enforced. 

6.  Submission  to  Arbitrators,  how  made. 

7.  Revocation,  how  made. 

8.  Consequences  of  Revocation. 

9.  What  is  necessary  to  constitute  an  Award. 

10.  Effect  of  Submission  and  Award. 

11.  Award,  how  confirmed. 

12.  Award,  how  vacated. 

13.  Award,  how  modified  or  corrected. 

14.  Proceedings  by  the  Court,  upon  the  Award  being  confirmed 

or  modified. 

15.  Proceedings  on  an  Appeal  from  an  order,  vacating  an 

Award. 

Arbitration  is  where  the  parties,  injuring  and  injured,  submit 
all  matters  in  dispute,  concerning  any  personal  chattels,  or  per- 
sonal wrong,  to  the  judgment  of  two  or  more  arbitrators  ;  or 
frequently  there  is  only  one  arbitrator  originally  appointed.  The 
decision,  in  such  a  case,  is  called  an  award.     (3  Blk.  Com.  16.) 

All  persons,  except  infants  and  married  women,  and  persons 
of  unsound  mind,  may,  by  an  instrument  in  writing,  submit  to 
the  decision  of  one  or  more  arbitrators,  any  controversy  existing 
between  them,  which  might  be  the  subject  of  an  action  at  law, 
or  of  a  suit  in  equity,  except  as  herein  otherwise  provided  ;  and 
may,  in  such  submission,  agree,  that  a  judgment  of  any  court 
of  law  and  of  record,  to  be  designated  in  such  instrument, 
shall  be  rendered  upon  the  award  made,  pursuant  to  such  sub- 
mission.    (2  R.  S.  028,  sec.  1.) 

17 


258  OF  ARBITRATIONS.  ' 

No  such  submission  shall  be  made  respecting  the  claim  of  any 
person  to  any  estate,  in  fee  or  for  life,  to  real  estate ;  but  any 
claim  to  an  interest  for  a  term  of  years,  or  for  one  year,  or  less, 
in  real  estate,  and  controversies  respecting  the  partition  of  lands 
between  joint  tenants,  or  tenants  in  common,  or  concerning  the 
boundaries  of  lands,  or  concerning  the  admeasurement  of  dower, 
may  be  so  submitted  to  arbitration.     (Id.  sec.  2.) 

The  arbitrators  thus  selected,  shall  appoint  a  time  and  place 
for  the  hearing,  and  shall  adjourn  the  same,  from  time  to  time, 
as  may  be  necessary  ;  and,  on  the  application  of  either  party, 
and  for  good  cause,  they  may  postpone  such  hearing  to  a  time 
not  extending  beyond  the  day  fixed  in  such  submission  for  ren- 
dering their  award.     (Id.  sec.  3.) 

The  arbitrators  should  see  that  the  respective  parties  have  a 
reasonable  notice  of  their  meetings,  and  a  fair  opportunity  to 
procure  the  attendance  of  their  witnesses.  In  one  case,  it  was 
held,  that  unless  this  is  done,  the  award  is  a  nullity.  (6  Cow. 
103.)  On  the  other  hand,  where  due  notice  is  given,  and  either 
party  refuses  to  attend,  the  arbitrators  have  power  to  proceed, 
and  decide  ex  parte. 

Before  proceeding  to  hear  any  testimony,  the  arbitrators  shall 
be  sworn  faithfully  and  fairly  to  hear  and  examine  the  matters 
in  controversy,  and  to  make  a  just  award,  according  to  the  best 
of  their  understanding.     (2  R.  S.  629,  sec.  4.) 

Such  oath  may  be  administered  by  any  judge  of  any  court 
of  record,  or  by  any  Justice  of  the  Peace,  or  by  any  commission- 
er of  deeds.     (Sess.  Laws  1843,  chap.  187,  p.  246.) 

FORM    OF    OATH  TO  BE    ADMINISTERED    TO    ARBITRATORS. 

"  You  and  each  of  you,  do  solemnly  swear,  that  you  will  faith- 
ful ly  and  fairly  hear  and  examine  the  matters  in  controversy 
submitted  to  you  as  arbitrators  by  and  between  John  Doe  of  the 
one  part,  and  Richard  Roc  of  the  other  part,  and  a  just  award 
thcj'cof  make,  according  to  the  best  of  your  understanding." 

"Witnesses  may  be  compelled  to  appear  before  such  arbitrators 
by  subpojnas  to  be  issued  by  any  Justice  of  the  Peace,  in  the 
same  manner,  and  with  the  like  effect,  and  subject  to  the  same 
pcnallies  for  disobedience,  as  in  cases  of  trials  before  Justices  of 
the  Peace.     (2  R.  S.  029,  sec.  6.) 

It  would  .seem,  that  on  ap)>lication  by  cither  party  to  a  Justice 
of  (lie  Peace  for  a  subpcena  to^compel  the  attendance  of  witnesses 


OF  ARBITRATIONS.  259 

before  arbitrators,  he  may  issue  the  subpoena  without  any  proof 
whatever. 

It  would  be  well  however,  in  all  cases,  for  the  Justice  to  take 
proof  of  the  submission  by  the  oath  of  the  party  or  some  third 
person  applying  in  his  behalf 

FORM    OF    THE    OATH. 

You  do  swear  that  you  will  make  true  answers  to  such  ques- 
tions as  I  shall  put  to  you,  touching  the  necessity  and  propriety 
of  my  issuing  a  subposna  upon  your  present  aj)plication. 

If  the  answers  of  the  person  examined  under  oath  are  satis- 
factory, a  subpoena  should  issue  in  the  following  form  : — 

SUBPCENA    TO    APPEAR    BEFORE    ARBITRATORS. 

Town  of  Oxford^  ss. 
To  John  Smith,  Peter  Brown,  and  David  Stone.  Greeting  : 

You,  and  each  of  you,  are  hereby  commanded,  in  the  name 
of  the  people  of  the  State  of  New  York,  to  appear  at  the  Drover's 
Inn,  in  the  town  of  Oxford,  County  of  Chenango  on  the  first  day 
of  July  next,  at  two  o'clock  in  the  afternoon  of  that  day,  before 
John  Doe  and  Richard  Roe,  arbitrators  chosen  to  determine  a 
controversy  between  Henry  Strong  and  Abram  Bevier,  then 
and  there  to  testify  in  relation  thereto  before  said  arbitrators,  on 
the  part  of  the  said  Henry  Strong.  Hereof  fail  not  at  your 
peril.     Given  under  my  hand  this  10th  day  of  June  1849. 

David  Long,  Justice. 

All  the  arbitrators  must  meet  together,  and  hear  all  the  proofs 
and  allegations  of  the  parties  ;  but  an  award  by  the  majority  of 
them  shall  be  valid  unless  the  concurrence  of  all  the  arbitrators 
be  expressly  required  in  the  submission.     (2.  R.  S.  029,  sec.  7.) 

The  oaths  to  witnesses  and  other  persons  examined  before  the 
arbitrators,  may  be  administered  by  the  arbitrators,  or  any,  or 
either  of  them.     (Sess.  Laws,  1843,  chap.  187,  p.  246.) 

FORM    OF    OATH    TO    BE    ADMINISTERED    TO    A    WITNESS    BY 
ARBITRATORS. 

"  You  do  swear,  that  the  evidence  you  shallgive  to  these  arbi- 
trators, \or  this  arbitrator^  touching  the  matters  in  difference 
submitted  for  their  [or  his]  determination  and  award,  by  and 
between  Henry  Long  of  the  one  part,  and  Abram  Bevier  of 


260 


OF  ARBITRATIONS. 


the  other  part,  shall  be  the  truth,  the  Avhole  truth,  and  nothing 
but  the  truth." 

To  entitle  any  award  to  be  enforced,  according  to  the  provi- 
sions of  this  title,  it  must  be  in  writing,  subscribed  by  the  arbi- 
trators making  the  same,  and  attested  by  a  subscribing  witness. 
(2  R.  S.  629,  sec.  8.) 

Notwithstanding  the  above  provision  it  has  been  held  that  a 
submission  to  arbitrators  is  valid,  though  by  parol,  and  is  never 
required  to  be  in  writing  except  for  the  purpose  of  enforcing  the 
award  in  the  manner  prescribed  by  the  statute.     (23  Wend,  258. 

2  Hill,  271.) 

Though  in  general  a  submission  by  parol  is  valid,  yet  where 
from  the  subject  of  the  arbitration  a  writing  is  necessary  to  pass 
the  right  to  the  thing  in  demand,  or  defeat  or  destroy  the  de- 
mand, the  submission  and  award,  to  be  availing  as  a  bar  to  that  de- 
mand, must  be  in  writing.    (Cow.  &,  Hill's  Notes,  1026  and  1037.) 

Very  little  form  is  necessary  either  in  submitting  or  deciding 
by  arbitration,  those  controversies  which  are  cognizable  before 
a  Justice.  The  parties  may,  either  in  writing,  or  by  parol,  agree 
on  such  men  as  they  choose,  consisting  of  what  number  they 
please,  to  settle  their  disputes,  whose  duty  it  is  to  hear  the  proofs 
and  allegations  of  the  parties,  as  nearly  as  may  be,  according  to 
the  rules  of  law.     (3  Cai.  166.) 

A  very  usual  mode  of  submission,  where  the  controversy  is 
not  complicated,  is  drawing  mutual  promissory  notes  sufficient 
to  cover  the  amount  or  balance  claimed  on  either  side  ;  and 
agreeing  that  the  arbitrators  shall  endorse  down,  or  deliver  up, 
both,  or  either  of  the  notes,  as  they  shall  award.  A  note  thus 
passed  upon  and  endorsed  down,  so  as  to  meet  what  one  party 
ought  to  recover  against  the  other,  has  been  held  valid  and 
binding,  as  a  promissory  note.     (Id.) 

FORM    OF    SUBMISSION    IN    WRITING. 

"VVo  the  undersigned,  hereby  mutually  agree  to  submit  [here 
describe  the  matter  in  difference]  to  the  award  and  determina- 
tion of  John  Doc  and  Richard  Roe,  for  them  to  hear  and  deter- 
mine the  same,  and  make  their  award  in  writing. 
Witness  our  hands  this  8th  day  of  June,  1849. 

HicNRY  Strong, 
Signed  in  j)n"Sonco  of  Aijram  Bkviek. 

Alvin  Wiikklkr. 


OF  ARBITRATIONS,  261 

Either  party  may  revoke  the  powers  of  the  arbitrators,  at  any 
time  before  the  cause  or  matter  is  finally  submitted  to  them  upon 
a  hearing  of  the  parties,  for  their  decision.     (2  R.  S.  631,  sec.  23.) 

The  revocation  need  not  be  in  any  particular  form  ;  any 
thing  showing  an  intention  to  revoke,  would  be  sufficient.  In 
case  the  submission  be  by  parol,  it  would  be  enough  for  the  party 
revoking,  to  say  in  the  presence  of  the  arbitrators  and  the  oppo- 
site party,  that  he  revokes  their  powers  under  their  submission. 
As  a  general  rule,  however,  it  would  be  better  to  adopt  the  fol- 
lowing : 

FORM    OF    REVOCATION. 

To  John  Doe  and  Richard  Roe. 

This  is  to  inform  you  that  I  hereby  revoke  your  powers  as  ar- 
bitrators, under  the  submission  in  writing  made  to  you  by  Abram 
Bevier  and  myself,  on  the  8th  day  of  June,  1849.  Witness  my 
hand,  this  14th  day  of  June,  1849. 

Henry  Strong. 

If  the  submission  be  by  an  instrument  under  seal,  the  revo- 
cation should  also  be  under  seal. 

Where  the  submission  is  by  two  on  the  one  side,  and  one  on 
the  other,  one  of  the  two  cannot  revoke  the  powers  of  the  arbi- 
trators, without  the  assent  of  the  other.    (12  Wend.  578.) 

A  revocation  is  not  complete,  until  notice  of  it  be  given  to  the 
opposite  party. 

FORM  OF  NOTICE  OF  REVOCATION. 

To  Abram  Bevier, — 

Sir. — Please  take  notice  that  I  have  this  day  revoked  the  powers 
of  John  Doe  and  Richard  Roe,  arbitrators,  chosen  to  settle  the 
matters  in  controversy  between  us,  by  an  instrument  of  revoca- 
tion, of  which  the  annexed  is  a  copy.     Dated  June  14th,  1849. 

Yours,  Henry  Strong. 

Whenever,  any  submission  to  arbitration  shall  be  revoked 
by  a  party  thereto,  before  the  publication  of  an  award,  the  party 
so  revoking  shall  be  liable  to  an  action  by  the  adverse  party,  to 
recover  all  the  costs,  expenses  and  damages,  which  he  may 
have  incurred  in  preparing  for  such  arbitration.  (2  R,  S.  631, 
sec.  23.) 

If  the  submission  so  revoked  was  contained  in  the  condition 


262  OF  ARBITRATIONS. 

of  any  bond,  the  obligee  in  such  bond  shall  be  entitled  to  prose- 
cute the  same,  in  the  same  manner  as  other  bonds,  with  condi- 
tions other  than  for  the  payment  of  money,  and  to  assign  such  re- 
vocation as  a  breach  thereof;  and  for  such  breach  he  shall  recover 
as  damages,  the  costs  and  expenses  incurred,  and  the  damages 
sustained  by  him  in  preparing  for  such  arbitration.     (Id.  24.) 

No  other  sum,  penalty,  forfeiture,  or  damages,  shall  be  recov- 
ered for  any  revocation  of  a  submission  to  arbitration  than  such 
as  are  prescribed  in  the  two  last  sections  ;  notwithstanding  any 
stipulated  damages,  penalty  or  forfeiture  contained  in  such  sub- 
mission, or  in  any  other  instrument  or  agreement  collateral 
thereto.     (Id.  sec.  25.) 

The  award  must  be  made  within  the  time  limited  by  the  sub- 
mission, unless  extended  by  agreement.  (Kyd  on  Awards,  96.) 
A  stipulation  to  extend  the  time  may  be  by  agreement  not  under 
seal,  although  the  submission  was  under  seal.  (5  Paige,  575.) 
Where  no  time  is  limited  within  which  the  arbitrators  are  to 
make  their  award,  they  may  take  their  own  time.   (5  Paige,  577.) 

The  award  must  correspond  with  the  submission,  and  the 
arbitrators  must  not  exceed  the  powers  conferred  on  them,  and 
make  an  award  concerning  matters  not  within  the  terms  of  the 
submission. 

The  award  must  also  be  certain  and  final.  That  is,  the  act 
awarded  to  be  done,  and  the  thing  about  which  it  is  to  be  done, 
should  be  so  far  pointed  out  that  any  one  can  see  or  ascertain 
what  steps  are  to  be  taken  in  performing  it ;  and  therefore  an 
award  to  finish  the  house  or  to  pay  for  the  stone,  without  saying 
"  what  house  or  what  stone,  is  void  for  uncertainty,  (2  Caines,  235,) 
as  also  an  award  to  give  good  and  si/fficient  security,  without 
defining  the  nature  of  the  security.  (9  J.  R.  43.  8  Cow.  235.) 
And  the  award  must  make  a  final  disposition  of  the  matters  em- 
braced in  the  submission,  so  that  they  may  not  become  the  sub- 
ject or  occasion  of  future  litigation  between  the  parties.  (12 
Wend.  377.) 

DOND    OF    AllIilTRATION. 

Know  all  men  by  tlicse  presents,  that  I,  Henry  Strong,  of  the 
village  of  Hinghamton,  in  the  county  of  Broome,  am  held  and 
firmly  bomid  unto  Abram  IJevicr,  of  the  same  place,  in  the  sum 
of  five  hundred  dollars,  good  and  lawful  money,  to  be  paid  to  the 


OF  ARBITRATIONS.  263 

said  Abram  Bevier,  or  to  his  certain  attorney,  executors,  admin- 
istrators, or  assigns ;  for  which  payment,  to  be  well  and  truly 
made,  I  bind  myself,  my  heirs,  executors,  and  administrators, 
firmly  by  these  presents.  Sealed  with  my  seal,  and  dated  this 
8th  day  of  June,  1849. 

The  condition  of  this  obligation  is  such,  that  if  the  above 
bounden  Henry  Strong,  his  heirs,  executors,  and  administrators, 
on  his  or  their  parts,  shall  do,  and  in  all  things  well  and  truly 
stand  to,  obey,  abide  by,  perform,  fulfil,  and  keep  to  the 
award,  order,  arbitrament,  and  final  determination  of  John  Doe 
and  Richard  Roe,  arbitrators,  indifferently  elected  and  named, 
as  well  on  the  part  and  behalf  of  the  above  bounden  Henry 
Strong,  as  of  the  above  named  Abram  Bevier,  to  arbitrate,  award, 
order,  judge,  and  determine,  of  and  concerning  [here  set  forth 
the  matter  in  difference,  as  stated  in  the  submissio7i,]  by  and 
between  the  said  parties,  so  as  the  said  award  be  made  in  wri- 
ting under  the  hands  of  the  the  said  John  Doe  and  Richard  Roe, 
and  ready  to  be  delivered  to  the  said  parties  in  difference,  or  such 
of  them  as  shall  desire  the  same  on  or  before  the  1st  day  of  July 
next ;  then  this  obligation  to  be  void — otherwise  of  force. 

Henry  Strong,  [l.  s.] 

Sealed  and  delivered  in  presence  of 
Samuel  Hardy. 

If  it  is  intended  to  have  a  judgment  entered  on  the  award, 
to  the  foregoing,  add  : — 

"  And  it  is  hereby  agreed  that  a  judgment  in  the  Supreme 
Court  may  be  rendered  upon  the  award,  to  be  made  pursuant  to 
the  above  submission." 

form  of  an  award. 

To  all  to  whom  these  presents  shall  come,  Greeting  : 

Whereas,  a  controversy  has  arisen,  and  is  now  depending,  be- 
tween Henry  Strong,  of  Binghamton,  and  Abram  Bevier,  of 
the  same  place,  for  determining  which,  the  said  Henry  Strong 
and  Abram  Bevier,  have  bound  themselves,  each  to  the  other, 
in  the  penal  sum  of  five  hundred  dollars,  by  their  several  bonds, 
bearing  date  the  8th  day  of  June,  1849,  conditioned,  [here  state 
the  substance  of  the  terms  of  the  suhmission :]  now,  therefore, 
know  ye  that  we,  the  said  John  Doe  and  Richard,  taking  upon 


264  OF  ARBITRATIONS. 

US  the  charge  and  burden  of  said  award,  and  having  dehberately 
heard  the  allegations  and  proofs  of  both  the  said  parties  do,  by 
these  presents,  award  of,  and  concerning  the  premises,  in  man- 
ner and  form  following,  that  is  to  say  : — 

We  do  award,  order,  decree,  and  adjudge  [here  state  the  facts 
as  the  arbitrators  determine.] 

In  witness  whereof,  the  said  arbitrators  to  this  award,  have 
set  their  hands  and  seals,  this  1st  day  of  July,  1849. 

John  Doe,         [l.  s.] 
Richard  Roe,  [l.  s.] 

form  op  release  in  pursuance  of  an  award. 

Broome  County,  ss. — Know  all  men  by  these  presents,  that  I, 
Henry  Strong,  of  Binghamton,  county  aforesaid,  for  and  in  con- 
sideration of  the  sum  of  one  dollar,  to  me  in  hand  paid,  by 
Abram  Bevier,  of  the  same  place,  hereby  release  and  discharge 
the  said  Abram  Bevier  of  and  from  all  actions,  cause  and  causes 
of  actions,  debts,  damages,  and  demands  whatsoever,  from  the 
beginning  of  the  world  to  the  day  of  the  date  of  the  bonds  of 
submission,  between  the  said  Abram  Bevier  and  myself;  and 
this  release  is  given  in  pursuance  of  the  award  made  by  John 
Doe  and  Richard  Roe,  arbitrators  between  us,  and  dated  the  1st 
day  of  July,  1849. 

Witness  my  hand  and  seal,  this  2d  day  of  July,  1849. 

Henry  Strong,  [l.  s.] 

The  submission  and  award  are  final  and  conclusive  between 
the  parties,  as  to  all  matters  embraced  by  the  terms  of  the  sub- 
mission, whether  the  same  be  actually  submitted  and  passed 
upon  at  the  hearing  or  not,  or  whether  such  submission  or  award 
be  by  writing  or  parol.  (5  Wend.  268.)  And  should  the  par- 
ties submit  all  demands  between  them,  and  the  arbitrators  make 
an  award  thereupon,  and  the  party  by  mistake  should  omit  to 
bring  any  one  of  his  demands,  though  entire  and  distinct,  before 
the  arliitrators,  yet  he  cannot  afterwards  sue  for  it.  (12  J.  R. 
311.)  A  submission  to  arbitration,  is,  moreover,  a  discontinu- 
ance of  a  suit.  If,  therefore,  after  the  commencement  of  an  ac- 
tion, ^^  all  actions,  ^'C,"  be  submitted  to  arbitration,  the  defen- 
dant may  plead  the  fact  in  bar  of  the  further  maintenance  of  the 
suit. 


OF  ARBITRATIONS.  265 

After  an  appeal  from  a  Justice's  judgment,  the  parties  agreed 
to  arbitrate  the  subject  matter  of  the  suit,  and  accordingly  enter- 
ed  into  bonds  of  submission  which  contained  this  clause  :  "all 
furtlicr  proceedings  in  said  suit  at  law,  are  to  be  hereby  stayed 
and  ended,  and  the  award  or  determination  is  to  be  final.'' 
The  arbitrators  met  and  heard  the  parties,  but  were  unable  to 
agree  within  the  time  limited  by  the  submission,  and  finally  ad- 
journed without  day.  Held,  that  the  submission  not  only  put  an 
end  to  the  appeal,  but  extinguished  the  right  of  sueing  upon  the 
original  judgment.     (6  Hill,  615.) 

Parties  to  a  submission  to  arbitration  may  waive  the  oath  of 
the  arbitrators,  and  such  waiver  will  not  divest  the  proceeding 
of  the  character  of  a  statute  arbitration.  (1  Denio,  440.)  Such 
waiver  may  be  tacit,  by  going  on  where  the  arbitrators  are  not 
sworn  without  objection. 

Upon  the  submission  being  proved,  by  the  affidavit  of  a  sub- 
scribing witness  thereto,  and  upon  the  award  made  in  pursuance 
thereof,  being  proved  in  like  manner,  or  by  the  affidavit  of  the 
arbitrators,  within  one  year  after  the  making  of  the  same,  the 
court  designated  in  such  submission,  shall,  by  rule  in  open  court, 
confirm  such  award,  unless  the  same  be  vacated  or  modified,  or 
a  decision  thereon  be  postponed,  as  herein  provided.  (2  R.  S. 
629,  sec.  9.) 

Any  party  complaining  of  such  award,  may  move  the  court 
designated  in  such  submission,  to  vacate  the  same  upon  either 
of  the  following  grounds.     (Id.  sec.  10.) 

1.  That  such  award  was  procured  by  corruption,  fraud,  or 
other  undue  means. 

2.  That  there  was  evident  partiality  or  corruption  in  the  arbi- 
trators, or  either  of  them. 

3.  That  the  arbitrators  were  guilty  of  misconduct  in  refusing 
to  postpone  the  hearing  upon  a  sufficient  cause  shown,  or  in  re- 
fusing to  hear  any  evidence  pertinent  and  material  to  the  con- 
troversy, or  any  other  misbehavior  by  which  the  rights  of  any 
party  shall  have  been  prejudiced. 

4.  That  the  arbitrators  exceeded  their  powers  ;  or  that  they 
so  imperfectly  executed  them,  that  a  mutual,  final,  and  definite 
award,  on  the  subject  matter  submitted,  was  not  made. 

Any  party  to  such  submission  may  also  move  the  court  desig- 
nated therein,  to  modify  or  correct  such  award,  in  the  following 
cases  : — 


266  OF  ARBITRATIONS. 

1.  Where  there  is  an  evident  miscalculation  of  figures,  or  an 
evident  mistake  in  the  description  of  any  person,  thing  or  pro- 
perty referred  to  in  such  award. 

2.  Where  the  arbitrators  shall  have  awarded,  upon  some  mat- 
ter not  submitted  to  them,  not  affecting  the  merits  of  the  decision 
upon  the  matters  submitted. 

3.  Where  the  award  shall  be  imperfect  in  some  matter  of 
form,  not  affecting  the  merits  of  the  controversy ;  and  where,  if 
it  had  been  a  verdict,  such  defect  could  have  been  amended  or 
disregarded  by  the  court  according  to  the  provisions  of  law.  (2 
K.  S.  629,  sec.  11.) 

Every  such  application  to  vacate  or  modify  an  award,  shall 
be  made  to  the  court  designated  in  the  submission  at  the  next 
term  after  the  publication  of  such  award  upon  the  same  notice 
to  the  adverse  party,  as  in  other  cases  of  special  motions,  if  there 
be  time  for  that  purpose  ;  and  if  there  be  not  time,  such  court, 
or  any  judge  thereof,  may,  upon  good  cause  shown,  order  a  stay 
of  proceedings  on  such  award,  either  absolutely,  or  upon  such 
terms  as  shall  appear  just,  until  the  term  of  the  court  next  after 
such  first  term.     (Id.  sec.  12.) 

On  such  application,  the  court  may  vacate  such  award,  in 
any  of  the  cases  herein  before  specified  ;  and  if  the  time  within 
which  such  award  shall  have  been  required  to  be  made,  by  the  sub- 
mission, has  not  expired,  may,  in  their  discretion,  direct  a  re-hear- 
ing by  the  arbitrators  ;  and  in  the  cases  herein  specified,  the 
court  may  modify  and  correct  such  award,  so  as  to  affect  the  in- 
tent thereof,  and  to  promote  justice  between  the  parties,  (Id. 
sec.  13.) 

Upon  such  award  being  confirmed  or  modified,  the  court  shall 
render  judgment  in  favor  of  the  party  to  whom  any  sum  of  mo- 
ney or  damages  shall  have  been  awarded,  that  he  recover  the 
same  ;  and  if  the  award  shall  have  ordered  any  act  to  be  done 
by  cither  party,  judgment  shall  be  entered  that  such  act  be  done 
according  to  sucli  order.  The  costs  of  the  proceedings  shall  be 
taxed  as  in  suits  ;  and  if  no  provision  for  the  fees  and  expenses 
of  the  arbitrators,  shall  have  been  made  in  the  award,  the  court 
ehall  make  the  allowance,  as  provided  by  law  for  references  ; 
but  no  costs  shall  be  taxed  for  any  otlicr  services  or  expenses 
prior  to  such  application.     (2  R.  8.  630,  sec.  11.) 

A  record  of  such  judgmout  shall  be  made  commencing  with 
a  memorandum,  reciting  the  submission  ;  then  stating  the  hear- 


OF  ARBITRATIONS.  267 

ing  before  the  arbitrators  their  award  ;  the  proceedings  of  the 
court  thereupon,  in  modifying  or  confirming  such  award ;  and 
the  judgment  of  the  court,  for  the  recovery  of  the  debt  or  dama- 
ges awarded,  and  that  the  parties  perform  the  acts  ordered  by 
the  award,  and  for  the  recovery  of  the  costs  allowed.  (Id.  sec.  15.) 

Such  record  shall  be  filed  and  docketed,  as  records  of  judg- 
ments in  other  cases  ;  shall  have  the  same  force  and  effect  in 
all  respects ;  be  subject  to  all  the  provisions  of  law  in  relation  to 
judgments  in  actions,  and  may,  in  like  manner,  be  removed  and 
reversed,  on  appeal ;  and  execution  shall  issue  thereupon  against 
the  property  or  person  of  any  party  against  whom  a  recovery 
shall  be  had,  in  all  respects  as  upon  other  judgments.  (Id. 
sec.  16.) 

When  any  appeal  shall  be  taken  on  such  judgment,  certified 
copies  of  the  original  affidavits,  upon  which  any  application  in 
relation  to  such  award  was  founded,  and  of  all  other  affidavits  and 
papers  relating  to  such  application,  shall  be  annexed  to,  form  a  part 
of  and  be  returned  with  the  record  of  the  judgment ;  and  the  court 
to  which  such  appeal  shall  be  taken,  shall  reverse,  modify  or 
amend,  or  affirm  such  judgment,  or  any  part  thereof,  according 
to  justice.     (2  R.  S.  630,  sec.  17.) 

Where  by  such  judgment,  any  party  shall  be  required  to  per- 
form any  act,  other  than  the  payment  of  money,  the  court  ren- 
dering such  judgment,  shall  enforce  the  same  by  rule  ;  and  the 
party  refusing  or  neglecting  to  perform  and  execute  such  act,  or 
any  part  thereof,  shall  be  subject  to  all  the  penalties  of  continu- 
ing an  order  of  such  court,  and  may  be  proceeded  against  in  the 
manner  prescribed  in  the  thirteenth  title  of  this  chapter.  (2  R. 
S.  631,  sec.  J  8.) 

If  upon  any  application,  made  pursuant  to  the  foregoing  pro- 
visions, the  court  shall  vacate  and  set  aside,  any  award  of  arbi- 
trators, costs  shall  be  awarded  to  the  prevailing  party ;  and  the 
payment  thereof  may  be  enforced  by  rule  of  the  court,  as  in 
other  cases.     (Id.  sec.  19.) 

Upon  every  such  order  vacating  an  award,  the  party  ag- 
grieved may  appeal,  as  upon  any  other  judgment  of  such  court ; 
on  which  appeal  shall  be  returned  certified  copies  of  such  order, 
and  of  all  affidavits  and  papers  used  in  such  application  ;  and 
the  court  to  which  the  appeal  shall  be  taken,  shall  proceed  to 
confirm  or  reverse  such  order,  as  shall  be  just.     (Id.  sec.  20.) 

If  such  order  be  reversed,  the  proceedings  shall  be  remitted 


268  OF  ARBITRATIONS. 

to  the  court  from  which  they  were  removed,  to  proceed  thereon  ; 
or  the  court  to  which  such  proceedings  shall  have  been  returned 
may  proceed  thereon,  after  due  notice  to  the  party  complaining 
of  such  awardj  to  modify,  or  confirm  the  same^  in  the  same 
manner,  and  with  the  Uke  effect,  as  if  application  for  that  pur- 
pose had  been  originally  made  to  such  court.  (2  R.  S.  631. 
sec.  21.) 

Arbitration,  as  a  mode  of  settling  controversies,  is  in  many 
respects  preferable  to  any  other.  There  is  but  little  personal 
animosity  and  vituperation  incident  to  it.  It  saves  much  time^ 
trouble,  and  expense,  and  places  the  adjustment  of  differences 
in  the  hands  of  men  of  the  parties'  own  choosing,  in  whom  they 
repose  confidence,  and  by  whose  judgment  and  decision  they 
are  willing  to  abide. 


CHAPTER  XV. 

OF    MASTERS,  SERVANTS,  AND    APPRENTICES. 

This  chapter  embraces  the  following  subjects  : 

1.  The  Relation  of  Master  and  Servant. 

2.  Apprentices. 

3.  When  and  how  an  Infant  may  be  bound  out  as  an  Ap- 

prentice by  consent  of  the  Mother. 

4.  When  and  how  an  Infant  who  has  no  parent  living,  or 

none  in  a  legal  capacity  to  give  consent,  may  bind 
himself,  or  herself,  an  Apprentice. 

5.  When  Overseers  of  the  Poor  are  authorized  to  bind  out 

a  child. 

6.  Assignment  of  contract  of  Apprenticeship. 

7.  Steps  to  be  taken  when  a  person  lawfully  bound  to  ser- 

vice, refuses  to  serve. 

8.  Steps  to  be  taken  when  the  Apprentice  is  guilty  of  any 

misdemeanor  or  ill  behavior. 

9.  Proceedings  by  Apprentice  against  Master  for  cruelty? 

misusage,   or  violation    of   the   contract  of  Appren- 
ticeship. 

10.  Complaint  against  Apprentice  by  Master  where  money  is 

paid  with  the  Apprentice. 

11.  Assignment  of  contract  of  Apprenticeship  upon  the  death 

of  the  Master. 

The  Relation  of  Master  and  Servaiit. 

The  relation  of  master  and  servant,  rests  altogether  upon 
contract ;  the  one  obligating  himself  to  render  the  service,  and 
the  other  to  pay  the  stipulated  consideration. 

If  a  person  retain  a  servant,  and  agree  to  pay  him  so  much  a 
day,  month,  or  year,  the  servant  may  have  an  action  against 
the  master  on  the  contract ;  and  every  such  retainer  will  be 
presumed  in  consideration  of  wages,  until  the  contrary  appear. 
(2  Will.  4.  Bac.  Ab.,  tit.  Master  and  Servant.)  A  promise  by 
the  servant,  to  obey  the  lawful  and  reasonable  orders  of  the 


270  OF  MASTERS,  SERVANTS, 

master,  within  the  scope  of  the  services  contracted  for,  is  also 
impHed  by  law. 

Where  there  is  an  agreement  to  work  so  long,  at  such  a  price, 
or  to  work  so  long,  or  do  a  particular  piece  of  work,  without 
any  specific  price  agreed  on,  the  party  employed  has  no  right  to 
go  forward  and  perform  for  part  of  the  time,  or  a  part  of  the 
job,  and  then  break  off  without  his  employer's  consent,  and 
bring  his  action  for  the  work  as  far  as  he  has  gone  ;  on  the 
contrary,  a  strict  performance,  according  to  agreement  is  a.  con- 
dition precedent ;  and  unless  the  servant  fulfils  it  to  the  utmost 
of  his  capacity,  he  can  recover  nothing,  but  is  himself  liable  to 
an  action  for  a  breach  of  the  contract.  In  such  cases,  the  con- 
tract is  considered  entire,  and  nothing  short  of  a  full  'perform- 
ance, will  enable  the  party  to  sustain  an  action  upon  it.  But 
where  the  contract  is  not  entire — as  where,  by  the  terms  of  the 
agreement,  payment  may  be  demanded  for  a  part  performance, 
an  action  lies  for  the  money  due  for  such  part  performance. 
In  such  case,  however,  the  other  party  may  give  evidence  of 
damages  sustained  in  consequence  of  the  non-performance  of 
the  residue  of  the  contract,  in  diminution,  or  even  extinguish- 
ment of,  the  claim  made  against  him.  (3  Vin.  Abr.,  tit.  5.  2 
Dane's  Abr.,  314.) 

A.  contracted  with  B.  the  owner  of  a  factory,  to  spin  for  him 
ten  and  a  half  months,  to  be  paid  three  cents  per  run,  for  the 
yarn  he  should  spin.  A.  entered  upon  the  execution  of  his 
contract,  and  spun  until  his  services,  at  the  rate  agreed  on, 
amounted  to  about  twenty-five  dollars,  and  then  finding  his 
bargain  a  hard  one,  he  quit  before  the  expiration  of  the  time, 
and  brought  his  action  for  the  work  done.  B.  kept  regular  debt 
and  credit  in  his  book,  charged  A.  with  three  dollars  paid,  and 
credited  him  with  the  work,  at  so  much  a  run.  On  this  evi- 
dence, the  jury  before  a  Justice  of  the  Peace,  found  a  verdict  in 
favor  of  A.  for  twenty-two  dollars  and  thirty-five  cents.  But 
the  Supreme  Court  reversed  the  judgment,  holding  the  contract 
to  be  entire  ;  that  its  performance  was  a  condition  precedent, 
and  no  suit  could  lie  until  performance  of  the  ten  and  a  half 
months'  service.  (12  John.  165.)  And  where  C.  agreed  to 
work  for  I),  eight  months  for  .fl04,  or  $13  per  month,  and 
worked  near  two  months,  and  left,  refusing  to  work  any  longer, 
it  was  hold  that  the  contract  was  entire  for  eight  months  at  a 
stipulated  price,  and  that,  as  there  was  no  modification  or  re- 


AND  APrRENTICES.  271 

cisioii  of  it,  C.  had  no  claim  until  the  expiration  of  eight 
months  ;  that  the  work  was  a  condition  precedent  to  payment 
by  D.  (19  John.  337.  2  Pick.  R.  267.  Id.  332.)  So  where  a 
sailor  hired  for  a  voyage,  and  took  a  promissory  note  from  his 
employer  for  thirty  guineas,  provided  he  proceeded,  continued, 
and  did  his  duty  as  second  mate  from  Kingston  to  Liverpool^ 
but  died  on  the  voyage  ;  it  was  held  that  no  action  lay  for  v/hat 
he  had  done.  (6  T.  K.  320.)  So,  where  A.  agreed  with  B.  to 
erect  and  finish  a  barn  by  such  a  day,  for  four  hundred  dollars  ; 
but  performed  only  a  part,  and  left  it  unfinished,  without  B.'s 
consent ;  it  was  held  that  A.  could  recover  nothing  for  what  he 
had  done.  (2  Mass.  R.  147.)  And  in  a  contract  between  C. 
and  D.,  that  C.  should  repair  U.'s  damaged  chandelier,  and 
make  it  complete,  for  ten  pounds  ;  held,  that  no  action  could  be 
sustained  for  the  value  of  a  partial  repair,  though  beneficial  to 
D.,  and  consisting  partly  of  a  supply  of  fresh  materials,  such 
materials  not  having  been  demanded  back.  (4  Man.  &  Ryl.  1.) 
And  in  an  action  for  work  and  labor  in  curing  a  flock  of  sheep 
of  the  scab,  it  was  proved  that  the  plaintiff  had  declared  that 
he  did  not  expect  to  be  paid  unless  he  cured  all ;  and  it  appear- 
ing that  forty  out  of  the  flock  were  not  cured  ;  held,  that  he 
was  not  entitled  to  recover  any  thing.     (6  Dowl.  &  Ryl.  3.) 

If  a  servant  hired  for  a  definite  term,  leaves  the  service  before 
the  end  of  it,  without  reasonable  cause,  or  is  dismissed  for  such 
misconduct  as  justifies  it,  he  loses  his  right  to  wages  for^the 
period  he  has  served.  (2  Carr.  &  Payne's  N.  P.  Rep.  510.  6 
id.  15.) 

Where  L.  hired  to  P.  for  a  year,  and  after  working  ten  months 
and  a  half,  went  away,  saying  he  would  work  no  more  for  P., 
but  two  days  after  returned,  and  offered  to  fulfil  his  contract, 
which  P.  would  not  permit ;  held,  that  L.  could  not  recover 
any  thing  for  the  time  he  had  worked  ;  and  that  L.  having 
wantonly  deserted  P.'s  service  without  his  fault,  he  was  guilty 
of  a  violation  of  the  contract,  and  P.  was  under  no  obligation 
to  receive  him  again.  (8  Cow.  63.)  So,  where  the  plaintiff 
agreed  to  log  up,  burn  and  clear,  fit  for  sawing,  in  a  farmer  like 
manner,  ten  acres  of  land  by  the  20th  of  September,  to  be  paid 
at  the  rate  of  eight  dollars  per  acre  ;  and  the  plaintiff  did  clear 
part  of  the  land,  but  put  uj)  no  fence,  and  then  quit  the  work 
of  his  own  accord  without  the  default  of  the  defendant ;  it  was 
held,  that  the  plaintiff  could  recover  nothing.     (13  John.  44.) 


272  OF  MASTERS,  SERVANTS, 

And  where  a  sailor  contracts  for  certain  wages,  to  serve  the 
master  of  a  ship,  and  not  depart  the  ship  without  leave,  until 
the  voyage  be  ended,  and  the  vessel  discharged  of  her  cargo  ; 
although  the  vessel  arrive  at  her  port  of  discharge,  and  is  there 
moored,  yet  if  the  sailor  quit  the  vessel,  without  leave,  before 
the  cargo  is  discharged,  all  his  wages  are  forfeited,  and  he  can 
recover  nothing.     (13  John.  390.) 

A  servant  may  be  dismissed  by  the  master  before  the  expira- 
tion of  the  term,  either  for  wilful  disobedience,  immoral  conduct, 
or  habitual  neglect.     (4  Carr.  &  Payne's  N.  P.  Rep.  518.) 

In  one  case,  the  plaintiff"  was  a  yearly  servant  to  the  defend- 
ant, a  farmer  ;  he  refused,  as  dinner  was  ready,  to  go  Avith  the 
defendant's  horses  about  a  mile,  before  he  had  eaten  his  dinner, 
though  asked  to  do  so  by  his  master ;  on  this  ground,  the  mas- 
ter dismissed  him  immediately,  and  before  the  end  of  the  year  ; 
yet  it  was  held  that  the  servant  could  not  recover ;  that  the 
master  was  warranted  m  turning  him  away  ;  that  after  a  refu- 
sal on  the  part  of  the  servant,  to  perform  his  work,  the  master 
was  not  bound  to  keep  him  as  a  burthensome  and  useless  ser- 
vant, to  the  end  of  the  year.  (2  Stark.  256.)  The  fact  of  a 
servant's  inducing  his  master's  apprentice  to  run  away,  or  of  a 
clerk's  having  made  fraudulent  entries  in  his  master's  account 
books,  have  been  held  justifiable  causes  for  an  immediate  dis- 
missal. So,  if  the  acting  manager  of  a  theatre  conduct  himself 
in  such  an  improper  manner,  as  to  make  it  injurious  to  the  inte- 
rests of  the  theatre  to  keep  him,  the  lessee,  or  proprietor  may 
lawfully  dismiss  him.     (Chitt.  on  Con.  580.) 

Where  a  justifiable  cause  for  dismissal  exists,  it  is  sufficient 
to  prevent  the  servant's  recovering  wages,  though  the  servant 
might  not,  in  fact,  have  been  dismissed  upon  that  ground  ;  and 
it  is  not  necessary  that  the  cause  relied  on,  in  answer  to  an  ac- 
tion for  wages,  should  have  been  stated  at  the  time  of  dismissal. 
(Id.) 

■Where  the  contract  is  dissolved  by  mutual  consent  before  the 
period  at  which  the  wages  became  due,  the  servant  may  recover 
his  wages  yro  rala,  without  any  express  contract  to  that  effect. 
(Id.) 

The  master  is  bound  by  the  act  of  his  servant,  either  in  re- 
spect to  contracts  or  injuries,  when  the  act  is  done  by  authority 
of  the  master. 

A  master  is  liable  for  any  act  done  by  his  servant,  in  exccu- 


AND  APPRENTICES.  273 

ting  liis  orders  with  ordinary  care.  Consequently,  where  a  mas- 
ter ordered  his  servant  to  lay  down  a  quantity  of  rubbish  near 
his  neighbor's  wall,  but  so  that  it  might  not  touch  the  same, 
and  the  servant  used  ordinary  care  in  executing  the  orders  of 
his  master,  but  some  of  the  rubbish  naturally  ran  against  the 
wall,  it  was  held  that  the  master  was  liable.  (Steph.  N.  P.  3, 
2337.) 

The  master  is  also  liable  if  the  injury  proceeds  from  negli- 
gence or  want  of  skill  in  the  servant ;  for  it  is  the  duty  of  the 
master  to  employ  servants  who  are  honest,  skilful,  and  careful. 
An  action,  therefore,  lies  against  a  master,  if,  while  the  servant 
is  driving  his  master  in  a  gig,  the  horse  runs  away  and  does 
damage.  So  also,  in  an  action  for  damage  done  to  the  plaintiff's 
carriage,  against  which  the  defendant's  cart  was  driven,  the  de- 
fendant was  held  liable,  although  it  appeared  that  the  defen- 
dant's servant  was  not  driving  at  the  time  of  the  accident,  but 
had  entrusted  the  reins  to  a  stranger,  who  was  driving  him,  and 
who  was  not  in  the  service  of  the  defendant.  (Steph.  N.  P.  3, 
2338.)  A  person  occasionally  employed  by  the  defendant  as 
his  servant,  being  sent  out  by  him  on  his  business,  took  the 
horse  of  another  person,  in  whose  service  he  also  worked,  and 
in  going,  rode  over  the  plaintiff.  At  the  trial,  it  was  left  to  the 
jury  to  say  whether  or  not  the  horse  v/as  taken  by  the  servant, 
with  the  implied  authority  of  the  defendant ;  and  a  verdict  hav- 
ing been  found  for  the  plaintiff,  a  new  trial  was  refused.     (Id.) 

If  a  servant  employs  another  servant  to  do  his  business,  and 
in  doing  it,  the  servant  so  employed  is  guilty  of  an  injury,  the 
master  is  liable.  Thus,  A.  contracted  with  B.  to  repair  a  house, 
and  B.  contracted  with  C.  to  do  the  work,  and  C  contracted 
with  D,  to  furnish  the  materials  ;  and  the  servant  of  D.  brought 
a  large  quantity  of  lime  to  the  house,  and  placed  it  in  the  road, 
by  which  the  plaintiff's  carriage  was  overturned  ;  it  was  held 
that  A.  was  answerable  for  the  damage,  on  the  ground  that  all 
the  sub-contracting  parties  were  in  the  employment  of  A.  To 
render  this  principle  applicable,  however,  the  nature  of  the  busi- 
ness must  be  such  as  to  require  the  agency  of  subordinate  per- 
sons, and  then  there  is  an  implied  authority  to  employ  such  per- 
sons.    (2  Kent's  Com.  260.) 

fif  a  servant  does  an  injury  fraudulently,  while  in  the  imme- 
diate employment  of  his  master,  the  master  and  servant  are  both 
liable.     (Id.  259.)     In  such  a  case,  it  is  competent  for  the  plain- 

18 


274  OF  MASTERS,  SERVANTS, 

tiff  to  bring  his  action  either  against  the  person  from  whom  the 
authority  flowed,  or  against  the  person  by  whom  the  injury  was 
actually  committed.     (Steph.  N.  P.  3,  2337.) 

The  master  is  only  answerable  for  the  fraud  of  his  servant, 
while  he  is  acting  in  his  business,  and  not  for  fraudulent  or  tor- 
tious acts,  or  misconduct,  in  those  things  which  do  not  concern 
his  duty  to  his  master,  and  which,  when  he  commits,  he  steps 
out  of  the  course  of  the  service.  (2  Kent's  Com.  259.)  If  a  ser- 
vant driving  a  carriage,  in  order  to  effect  some  purpose  of  his 
own,  wantonly  strike  the  horses  of  another  person,  and  produce 
the  accident,  the  master  will  not  be  liable ;  nor  will  he  be  lia- 
ble if  the  servant  use  the  carriage  for  his  own  purpose,  and  with- 
out his  master's  consent.  (Steph.  N.  P.  2340.)  Where  a  van 
was  standing  at  the  door  of  A.,  from  which  A.'s  goods  were  un- 
loading, and  A.'s  gig  was  standing  behind  the  van ;  and  B.'s 
coachman,  who  was  driving  B.'s  carriage,  came  up,  and  there 
not  being  room  for  the  carriage  to  pass,  the  coachman  got  off  his 
box,  and  laid  hold  of  the  van  horse's  head,  which  caused  the 
van  to  move,  and  thereby  a  case  fell  out  of  the  van  upon  the 
shafts  of  the  gig  and  broke  them  ;  it  was  held  that  B.  was  not  lia- 
ble for  this,  as  the  coachman  was  not  acting  in  the  employment 
of  B.  at  the  time  the  accident  occurred.     (Id.) 

If  a  master  command  his  servant  to  do  an  illegal  act,  the  ser- 
vant, as  well  as  the  master,  will  be  liable  to  the  party  injured, 
and  the  servant  cannot  plead  the  command  of  his  master  in  bar 
of  the  action.     (Steph.  N.  P.  3,  2339.) 

A  master  is  not  bound  to  provide  medical  attendance  or  medi- 
cines for  his  servant,  in  case  of  illness,  even  though  the  illness 
arise  from  an  accident  which  occurred  whilst  the  servant  was 
performing  the  duties  of  his  situation.     (Id.) 

Apprentices. 

Apprentices  arc  a  species  of  servants,  who  arc  bound  to  ser- 
vice for  a  term  of  years,  by  deed,  to  serve  their  masters,  and  to 
be  maintained  and  instructed  by  them,  in  some  art  or  trade.  (1 
Blk.  Com.  420.) 

"'^riio  relation  of  master  and  apprentice  is  an  intimate  and  in- 
teresting connection,  calculated  to  give  the  apprentice  a  thor- 
ough trade;  and  education,  and  to  advance  the  mechanic  arts  in 
skill,  neatness,  and  fidelity  of  workmanship,  as  well  as  in  the 


AND  APPRENTICES.  275 

facility-  and  utility  of  their  application.  The  relation,  if  duly 
cultivated  under  a  just  sense  of  the  responsibility  attached  to  it, 
and  with  the  moral  teachings  which  belong  to  it,  will  produce 
parental  care,  vigilance,  and  kindness,  on  the  part  of  the  master, 
and  a  steady,  diligent,  faithful  and  reverential  disposition  and 
conduct,  on  the  part  of  the  apprentice."  (Note  to  2  Kent's  Com. 
265.) 

It  is  a  settled  principle  of  law,  that  the  relation  of  master  and 
apprentice  cannot  be  created,  and  the  corresponding  rights  and 
duties  of  the  parent  transferred  to  a  master,  except  by  deed. 
(Id.)  The  general  rule,  and  the  law  of  this  state  is,  that  male 
infants  may  be  bound  to  serve  until  the  age  of  twenty-one,  and 
unmarried  females  until  the  age  of  eighteen. 

The  master  is  bound  to  provide  medical  assistance  for  his  ap- 
prentice ;  and  he  may  correct  him,  with  moderation,  for  negli- 
gence or  misbehavior.     (8  Car.  &  P.  153.) 

The  master  is  entitled  to  the  wages  and  fruit  of  the  personal 
labor  of  the  apprentice,  while  the  relation  continues  and  the  ap- 
prentice is  in  his  service ;  and  there  are  cases  which  give  the 
master  a  right  to  the  wages  or  earnings  of  the  apprentice,  while 
in  another's  service,  and  with  or  without  his  master's  license, 
and  even  though  the  trade  or  service  be  different  from  that  to 
which  the  apprentice  is  bound.     (2  Kent's  Com.  265.) 


Justices  of  the  Peace  may  often  be  required  to  aid  in  binding 
out  apprentices.  The  cases  where  their  aid  is  required,  are  the 
following  :  (2  R.  S.  215.) 

When  an  infant  is  bound  by  the  consent  of  the  mother,  a  Jus- 
tice of  the  Peace  of  the  town  must  certify  by  endorsment  on  the 
indenture,  to  the  fact  that  the  father  of  such  infant  is  dead,  or  is 
not  in  a  legal  capacity  to  give  his  consent,  or  has  abandoned 
or  neglected  to  provide  for  his  family.  One  of  these  facts  must 
exist  to  render  the  mother's  consent  valid  and  effectual.  (Sees. 
1  and  2.) 

FORM    OP    CERTIFICATE. 

I,  the  undernamed  Justice  of  the  Peace  of  the  town  of  Owego, 
do  certify  that  the  father  of  the  within  named  John  Long,  is 
dead,  [or,  "  is  not  in  a  legal  capacity  to  give  his  consent  to  the 


276  OF  MASTERS,  SERVANTS, 

binding  of  the  said  John  Long,"  or  "  has  absconded  and  ne- 
glected to  provide  for  his  family."]     Dated  May  1st,  1849. 

James  Bush,  Justice. 

An  infant  who  has  no  parent  living,  or  none  in  a  legal  capa- 
city to  give  consent,  and  no  guardian,  may  bind  himself  or  her- 
self an  apprentice,  by  the  consent  of  the  overseers  of  the  poor,  or 
any  two  Justices  of  the  Peace  of  the  town,  or  a  judge  of  the 
county  court  of  the  county.  Such  consent  must  be  in  writing, 
and  subjoined  to,  or  endorsed  on  the  indenture.     (Sees.  2  and  3.) 

CERTIFICATE    OF    CONSENT. 

We,  two  of  the  Justices  of  the  Peace  of  the  town  of  Owego, 
do  declare  and  certify  our  assent  to  the  binding  out  of  the  above 
[or  "  within"]  named  John  Long,  an  apprentice  with  the  within 
named  Henry  Peters,  according  to  the  form  and  effect  of  the 
within  indenture.     Dated  May  1st,  1849. 

James  Bush,  ) 

.  o  ?  Justices. 

Alfred  Strong,  \ 

Overseers  of  the  poor  of  any  town  or  city,  are  authorized  to 
bind  out  any  child  who,  or  whose  parent  or  parents  shall  become 
chargeable  to  such  town  or  city  ;  or  who  shall  have  been  sent 
to  a  poor  house,  other  than  the  county  poor  house.  The  writ- 
ten consent  of  two  Justices,  or  of  the  mayor,  recorder,  or  alder- 
man of  the  citj"",  or  any  two  of  them,  is  required  to  such  bind- 
ing ;  and  it  is  made  their  special  duty  to  inform  themselves  fully 
of  the  infant's  age.     (2  R.  S.  215,  sec.  G.     18  J.  R.  270.) 

The  act  of  the  Justices,  in  assenting  to  the  binding,  is  judi- 
cial, and  they  must,  therefore,  confer  together,  and  not  separate- 
ly ;  and  their  judgment  should  be  exercised  solemnly  and  can 
tiously.     (3  T.  R.  380.) 

As  it  may  bo  often  convenient  that  a  Justice  should  draw  tlie 
indentures,  and  necessary  that  he  should  understand  what  the 
law  requires  to  be  inserted  therein,  to  guide  him  in  the  deter- 
mining of  his  assent,  I  propose  the  following  form  of  an  inden- 
ture : — 

FORM    OF    INDENTUIIE. 

This  indenture,  made  the  10th  day  of  May,  in  the  year  eno- 


AND  APPRENTICES. 


277 


thousand  eight  hundred  and  forty-nine,  between  WiUiatn  Stow 
and  Henry  West,  overseers  of  the  poor  in  the  town  of  Norwich, 
in  the  county  of  Chenango,  and  James  Jackson,  of  Norwich 
aforesaid,  carpenter— witnesseth, — 

That  the  said  overseers  of  the  poor  have  bound,  and  by  these 
presents  do  bind,  John  Burns,  who  is  now  chargeable  [or, 
"  whose  parents  are  now  chargeable,"  or  "  who  has  been  sent  to 
the  poor  house  in  said  town,  other  than  the  county  poor  house,"] 
to  said  town,  and  who  is  on  this  day,  as  we  have  fully  informed 
ourselves,  of  the  age  of  ten  years,  three  months  and  six  days 
as  an  apprentice  to  the  said  James  Jackson,  and  to  reside  with 
and  serve  the  said  James  Jackson,  as  such  apprentice,  until  he 
shall  arrive  at  the  full  age  of  twenty-one  years,  and  so  to  serve 
in  all  respects,  faithfully,  obediently,  and  honestly. 

And  the  said  James  Jackson,  hereby,  for  himself,  his  execu- 
tors and  administrators,  covenants  and  agrees,  to  and  with  the 
said  overseers  of  the  poor,  as  such  overseers,  and  their  succes- 
sors in  office,  and  to  and  with  the  said  John  Burns,  that  he 
will  instruct  the  said  John,  in  every  reasonable  and  practicable 
manner  in  the  trade  or  business  of  a  carpenter,  which  he  now 
follows  ;  that  he  will,  during  said  term,  provide  for  him  neces- 
sary boarding,  lodging,  apparel,  medicines,  and  medical  atten- 
dance ;  that  he  will  cause  him  to  be  instructed  in  reading, 
writing,  and  the  ground  rules  of  arithmetic  ;  that  he  will  pro- 
vide for,  and  deliver  to  him,  at  the  expiration  of  said  term,  one 
good  suit  of  holiday  clothes,  and  give  to  him  all  articles  of  his 
every  day  apparel,  then  in  wear,  and  also  a  new  bible ;  and  that 
he  will  in  such  manner  provide  for,  and  take  care  of  said  appren- 
tice, that  he  shall  not,  during  said  term,  be,  in  any  manner,  a 
charge  to  said  town.  In  witness  whereof,  we  have  hereunto  set 
our  hands  and  seals  the  day  and  year  first  above  written. 

William  Stow,  [l.  s.] 


Henry  West,      [l.  s.] 
James  Jackson,    [l.  s.] 


Sealed  and  delivered  in  presence  of, 
John  Doe. 


The  agreement  to  instruct  the  apprentice  in  reading,  writing, 
and  (if  a  male)  arithmetic,  and  to  give  a  new  bible,  must  be 
inserted  in  the  indenture ;  the  other  agreements  by  the  master 
as  expressed  in  the  above  form,  are  customary,  and  may  be  va- 


278  OF  MASTERS,  SERVANTS, 

ried  to  conform  to  the  contract  as  actually  made.  It  is,  howe- 
ver, to  be  observed,  that  a  female  can  be  bound  only  to  the  age 
of  eighteen.     (2  R.  S.  215,  sees.  10  and  1.) 

FORM    OF    justice's    CERTIFICATE    TO    BE    SUBJOINED    TO,    OR 
ENDORSED  UPON    THE    INDENTURE. 

We,  being  two  of  the  Justices  of  the  Peace  of  the  town  of 
Norwich,  having  fully  informed  ourselves  of  the  age  of  the 
within  named  John  Burns,  and  having  conferred  together 
touching  the  propriety  of  the  binding  of  the  said  John  Burns, 
as  by  the  within  [or  "  foregoing"]  indenture,  do  hereby  declare 
our  assent  thereto.     Dated  May  10th,  1849. 

,     Alvin  Hunt, 
Henry  St.  John, 
Justices. 

An  infant  coming  from  a  foreign  country,  beyond  sea,  may 
bind  himself  to  service  in  the  manner  specified  in  the  statute. 
But  such  contract  of  service  must  be  acknowledged,  before 
either  a  mayor,  recorder,  alderman,  or  Justice  of  the  Peace,  and 
a  certificate  thereof,  endorsed  on  the  contract.  (2  R.  S.  215, 
sees.  12  and  13.) 

form    of    CERTIFICATE. 

I,  the  undernamed  Justice  of  the  Peace  of  the  county  of  Che- 
nango, do  certify,  that,  on  the  10th  day  of  May,  1849,  the  within 
named,  John  Doe,  personally  came  before  me,  and  being  by  me 
privately  examined,  acknowledged  that  he  freely  made  the 
within  contract. 

David  Long,  Justice." 

Such  contract  may  be  assigned  by  the  master,  by  a  written 
endorsement,  executed  in  the  presence  of  two  witnesses.  But 
to  render  such  assignment  valid,  the  written  approbation  of  one 
of  the  above  mentioned  officers  must  be  endorsed  on  the  con- 
tract,    (id.  21G,  sec.  14.) 

FORM    OF    APPROBATION. 

T,  the  undernamed  Justice  of  the  Peace  of  the  county  of  Che- 
nango, do  hereby  declare  my  approbation  of  the  assignment  of 


AND  APPRENTICES.  279 

the  within  contract  by  the  within  named  James  Jackson,  to 
Richard  Roe,  of  said  county.     Dated  May  10th,  1849. 

David  Long,  Justice. 

If  a  person  lawfully  bound  to  service,  refuse  to  serve,  as  by 
law,  and  the  terms  of  his  contract  or  indenture,  required,  the 
master  may  apply  to  a  Justice  of  the  Peace  of  the  county  where 
he  resides,  to  enforce  his  service.  The  act  authorizes  the  Jus- 
tice to  send  for  the  person  so  refusing,  either  by  warrant,  or 
otherwise.  Although  the  act  requires  no  formal  complaint  to  be 
made,  yet,  it  seems  to  me  proper  to  be  done,  before  issuing  the 
warrant.     (2  R.  S.  219,  sec.  29.) 

FORM    OF    COMPLAINT. 

Chenango  County,  ss. — Henry  Strong,  of  Oxford,  in  said 
county,  being  duly  sworn  before  the  undernamed  Justice  of  the 
Peace  of  said  county,  makes  oath  and  complains,  that  Samuel 
Hardy,  who  has  been  lawfully  bound  to  service,  to  the  said 
Henry  Strong,  and  on  whose  binding  no  sum  of  money  was 
received,  or  entitled  to  be  received,  by  said  Henry  Strong,  and 
whose  term  of  service  is  now  unexpired,  refuses  to  serve  the 
said  Henry  Strong,  as  by  law,  and  the  terms  of  his  indenture, 
required. 

Henp.,y  Strong. 
Subscribed  and  sworn  before  me, 
June  1st,  1849. 

David  Long,  Justice. 

FORM    OF    WARRANT. 

County  of  Chenango,  ss. 

To  any  Constable  of  said  County,  Greeting. 
Whereas,  Henry  Strong,  of  Oxford,  in  said  county,  has  this 
day  made  complaint,  on  oath  before  me,  the  undernamed  Jus- 
tice of  the  Peace  of  said  county,  that  Samuel  Hardy,  \as  in  the 
complaint.]  You  are,  therefore,  hereby  commanded,  in  the 
name  of  the  people  of  the  State  of  New  York,  forthwith  to 
bring  the  said  Samuel  Hardy  before  me,  at  my  office,  in  Oxford 
aforesaid,  to  be  dealt  with,  in  the  premises,  as  the  law  requires. 
Given  under  my  hand,  at  Oxford,  the  1st  day  of  June,  1849. 

David  Long,  Justice. 


280  OF  MASTERS,  SERVANTS, 

If  the  apprentice,  when  brought  before  the  Justice,  persist  in 
his  refusal  to  serve,  he  must  be  committed,  &-c.,  until  he  will 
consent  to  serve.     (2  R.  S.  219,  sec.  29.) 

FORM    OF    WARRANT    TO    COMMIT. 

Chenango  County,  ss. 

To  any  Constable  of  said  County,  Greeting. 
Whereas,  Samuel  Hardy,  an  apprentice,  lawfully  bound,  to 
service  to  Henry  Strong,  of  Oxford,  in  said  county,  has  been 
this  day  brought  before  me,  the  undernamed  Justice  of  the 
Peace  of  said  county,  by  my  warrant,  issued  upon  the  com- 
plaint, on  oath,  of  the  said  Henry  Strong,  that  the  said  Samuel, 
&c.,  [as  in  the  complamt.]  And  inasmuch  as  the  said  Samuel 
Hardy,  now  before  me,  persists  in  his  refusal  to  serve  the  said 
Henry  Strong,  and  it  appears  to  me,  upon  due  proof,  that  said 
Samuel  Hardy  has  been  lawfully  bound  to  service  to  the  said 
Henry  Strong  ;  that  said  Henry  Strong  has  not  received,  nor  is 
entitled  to  receive,  any  sum  of  money  for  his  instruction  of  said 
Samuel  Hardy ;  that  the  term  for  which  he  is  so  bound  is  now 
unexpired,  and  that  his  said  refusal  is  contrary  to  the  terms  of 
his  indentures,  and  to  the  law,  in  such  case  made  and  provided : 
You  are,  therefore,  hereby  commanded,  in  the  name  of  the  peo- 
ple of  the  State  of  New  Yorkj  to  convey  the  said  Samuel 
Hardy  to  the  common  jail  of  said  county,  the  keeper  whereof  is 
hereby  required  to  detain  the  said  Samuel  Hardy  in  custody  in 
said  jail,  until  he  shall  consent  to  serve  the  said  Henry  Strong, 
as  by  law  required.  Given  under  my  hand,  at  Oxford  aforesaid, 
June  2d,  1849. 

David  Long,  Justice. 

If  a  person  lawfully  bound  to  service  under  the  provisions  of 
the  above  mentioned  title,  be  guilty  of  any  misdemeanor,  or  ill 
behavior,  the  master  may  make  complaint  thereof  on  oath,  to 
two  Justices  of  the  Peace  of  the  county,  who  are  required  to 
cause  the  offender  to  bo  brought  before  them ;  and  if  they  find 
the  complaint  well  founded,  may  cither  commit  him  to  jail  for 
a  term  not  exceeding  one  month,  or  discharge  him  from  his 
service.     (2  R.  S.  219,  sees.  30,  31.) 


AND  APPRENTICES.  281 

FORM    OF    COMPLAINT. 

Chenango  County,  ss. — Henry  Strong  of  Oxford  in  said 
county,  being  duly  sworn,  makes  oath  and  complains,  before 
the  undernamed  Justices  of  the  Peace  of  said  county,  that 
Samuel  Hardy,  who  is  lawfully  bound  as  an  apprentice  to  said 
Henry  Strong,  and  on  whose  binding  no  sum  of  money  was  re- 
ceived, or  entitled  to  be  received,  by  said  Henry  Strong  as  a 
compensation  for  the  instruction  of  said  Samuel  Hardy,  and 
whose  term  of  service  is  unexpired,  has  been  guilty  in  his  ser- 
vice of  divers  acts  of  misdemeanor  and  ill  behavior ;  that  is  to 
say,  the  said  Samuel  Hardy  has  for  some  time  past,  against  the 
will,  and  repeated  reproofs  and  remonstrances  of  said  Henry 
Strong,  habitually  resorted  to  taverns  and  places  of  amusement, 
and  become  altogether  unsteady  and  unfaithful. — \or  other 
cause  of  complaint  which  gave  rise  to  the  prosecution,  as  the 
case  may  &e.] 

Henry  Strong. 
Subscribed  and  sworn  before  us,. 

June  1st,  1849. 

David  Long,        ; 

T  X)  }  Justices. 

James  IIussell,  \ 

FORM    of    warrant. 

Chenango  County,  ss : 

To  any  Constable  of  said  County,  Greeting  : 

Whereas,  Henry  Strong  of  Oxford,  in  said  county,  has  this 
day  made  complaint  on  oath  to  us,  the  undernamed  Justices  of 
the  Peace  of  said  county,  that  Samuel  Hardy,  &c. — [Acre  set 
forth  the  substance  of  the  com,plaint.'\  You  are,  therefore, 
hereby  commanded,  in  the  name  of  the  people  of  the  state  of 
New  York,  forthwith  to  apprehend  the  said  Samuel  Hardy,  and 
bring  him  before  us,  at  the  office  of  the  undernamed  David 
Long  in  Oxford  aforesaid,  that  we  may  hear,  examine  and  de- 
termine said  complaint,  and  deal  with  said  Samuel  Hardy  in 
the  premises  as  by  law  required. 

Given  under  our  hands  at  Oxford,  June  1st,  1849. 

David  Long,        \  oi-j'-,::^ 

James  Russell,  \  Justices.     ' 

Although  the  statute  does  not,  in  terms,  require  a  record  of 


282  OF  MASTERS,  SERVANTS, 

conviction,  in  case  they  find  the  apprentice  guilty,  to  be  made, 
yet  the  importance  and  effect  of  a  decision  against  the  ap- 
prentice, seems  to  render  such  a  proceeding  proper  and  ne- 
cessary. 

FORM    OP    RECORD. 

Chenango  County^  ss. — Be  it  remembered,  that  on  the  1st 
day  of  June,  instant,  at  Oxford,  in  said  county,  came  personally 
Henry  Strong,  of  Oxford  aforesaid,  before  us,  the  undernamed, 
being  two  of  the  Justices  of  the  Peace  of  said  county,  and 
made  to  us  complaint  on  oath,  that  Samuel  Hardy,  &.c. — [here 
set  forth  the  complaint] — whereupon  we  did  issue  our  warrant, 
to  cause  the  said  Samuel  Hardy  to  be  brought  before  us  to 
answer  to  said  complaint,  &c. ;  and  now,  at  this  day,  to  wit,  on 
the  2d  day  of  June,  1849,  at  Oxford  aforesaid,  the  said  Samuel 
Hardy  is  personally  brought  before  us,  and  the  said  Henry 
Strong  also  appears  ;  and  we,  having  heard  and  examined  the 
proofs  and  allegations,  as  well  of  the  said  Henry  Strong,  touch- 
ing his  said  complaint,  as  of  the  said  Samuel  Hardy,  in  his 
defence  thereof;  and  it  appearing  to  us,  that  said  complaint  is 
well  founded,  and  that  the  said  Henry  Strong  has  not  received, 
nor  is  entitled  to  receive,  any  sum  of  money  as  a  compensation 
for  his  instruction  of  said  Samuel  Hardy,  do  determine  and 
adjudge,  that  said  Samuel  Hardy  is  guilty  of  the  premises 
whereof  the  said  Henry  Strong  has  complained  against  him,  as 
aforesaid  ;  and  we  do  further  adjudge  and  determine,  that  said 
Samuel  Hardy  be  imprisoned  for  his  said  offence,  in  the  com- 
mon jail  of  said  county,  there  to  be  employed  in  hard  labor,  and 
be  confined  in  a  room  with  no  other  person,  for  the  term  of 
twenty  days. 

In  witness  whereof,  we  have  hereunto  set  our  hands,  at 
Oxford  aforesaid,  this  2d  day  of  June,  1849. 

David  Long,        ) 
James  Russell,  \ 

form  of  warrant  to  commit,  &c. 


Justices. 


Chenango  County,  ss  : 

To  any  Constable  of  said  County,  Greeting  : 
Wlioroas,  Henry   Strong  of  Oxford,  in    said   county,  made 
complaint  on  oath  to  us,  two  of  the  Justices  of  the  Peace  of 


AND  APPRENTICES.  283 

said  county,  that  Samuel  Hardy,  &.c. — [here  set  forth  the  com- 
plaint.] And  whereas,  we  caused  the  said  Samuel  Hardy  to 
appear  this  day  before  us.  at  Oxford  aforesaid,  (and  the  said 
Henry  Strong  also  appeared,)  and  upon  hearing  and  examining 
the  proofs  and  allegations  both  of  said  Henry  Strong  and 
Samuel  Hardy,  touching  the  matter  in  said  complaint  alleged, 
and  it  appearing  to  us,  that  said  complaint  is  well  founded,  and 
that  said  Henry  Strong  had  not  received,  and  was  not  entitled 
to  receive,  any  sum  of  money  for  the  instruction  of  said  Samuel 
Hardy,  we  did  adjudge  and  determine,  that  said  Samuel  Hardy 
be  imprisoned  as  hereinafter  directed :  You  are,  therefore, 
hereby  commanded,  in  the  name  of  the  people  of  the  state  of 
New  York,  to  take  and  convey  the  said  Samuel  Hardy  to  the 
common  jail  of  said  county,  the  keeper  whereof  is  required  to 
retain  the  said  Hardy  in  safe  custody  in  said  jail,  employed  in 
hard  labor,  and  in  a  room  with  no  other  person,  for  the  term  of 
twenty  days.     Witness  our  hands  at  Oxford,  June  2d,  1849. 

David  Long, 
James  Russell, 


Justices. 


If  the  Justices  find  the  complaint  to  be  well  founded,  and 
adjudge,  instead  of  imprisonment,  that  the  offender  be  dis- 
charged from  his  service,  (fcc,  then,  instead  of  concluding  the 
record  as  in  the  foregoing  form  with  the  sentence  of  imprison- 
ment, say : 

"  And  do  further  adjudge  and  determine,  that  said  Samuel 
Hardy  be  henceforth  discharged  from  his  service,  and  the  said 
Henry  Strong  from  all  obligations  to  the  said  Samuel  Hardy, 
by  reason  of  any  contract  of  service,  or  indenture  of  apprentice- 
ship, between  them,  or  in  behalf  of  said  Samuel  Hardy,  here- 
tofore made." 

FORM    OP    CERTIFICATE   OF    DISCHARGE. 

Chenango  County^  ss. — Whereas,  upon  due  hearing  and  ex- 
amination before  us,  being  two  of  the  Justices  of  the  Peace  of 
said  county,  touching  certain  acts  of  misdemeanor  and  ill  beha- 
vior of  Samuel  Hardy,  in  his  service  as  an  apprentice,  lawfully 
bound  to  Henry  Strong,  of  Oxford,  in  said  county,  whereof  the 
said   Henry  Strong  made   complaint   on  oath  before  us  ;  and 


284  OF  MASTERS,  SERVANTS, 

whereas,  upon  hearing  the  proofs  and  allegations,  both  of  said 
Henry  Strong  and  Samuel  Hardy,  who  appeared  before  us  and 
submitted  the  same,  touching  said  complaint,  and  it  appearing 
to  us  that  said  Henry  Strong  had  not  received,  nor  was  entitled 
to  receive,  any  sum  of  money,  as  a  compensation  for  his  in- 
struction of  said  Samuel  Hardy  ;  we  did  adjudge  and  deter- 
mine that  said  complaint  was  well  founded,  and  that  said 
Samuel  Hardy  be  henceforth  discharged  from  his  service,  and 
the  said  Henry  Strong  from  all  obligations  to  the  said  Samuel 
Hardy ;  as  by  the  record  of  our  said  determination  remaining 
before  us,  may  more  fully  be  seen.  Now,  therefore,  know  all 
men  whom  it  may  concern,  that  the  said  Samuel  Hardy  is  dis- 
charged from  his  service  to  the  said  Henry  Strong,  and  the  said 
Henry  Strong  from  all  obligations  to  the  said  Samuel  Hardy ; 
any  contract  of  service,  or  indenture  of  apprenticeship  between 
them,  or  in  behalf  of  the  said  Samuel  Hardy,  heretofore  made, 
to  the  contrary  notwithstanding. 

Given  under  our  hands  at  Oxford,  June  2d,  1849. 

David  Long,        ;  _ 

T  -n  [  Justices. 

James  IIussell,  ) 

If  a  master  be  guilty  of  any  cruelty,  misusage,  refusal  of  ne- 
cessary provisions  or  clothing,  or  any  other  violation  of  law,  or 
the  terms  of  his  contract,  towards  the  person  bound  to  his  ser- 
vice, such  person  may  complain  to  two  Justices  of  the  Peace  of 
the  county,  who  are  empowered  to  summon  the  parties  before 
them,  examine  into,  hear,  and  determine  the  complaint,  and  if 
they  find  sufficient  cause,  discharge  such  person  from  his  obli- 
gation of  service.     (3  R.  S.  219,  sec.  32.) 

FORM    OF    COMPLAINT. 

Chenango  Countij,  ss. 

Samuel  Hardy,  of  Oxford,  in  said  county,  being  duly  sworn, 
makes  oath  and  complains  to  the  undernamed  Justices  of  the 
Peace  of  said  county,  that  he  is  now  an  apprentice,  lawfully 
bound  to  Henry  Strong,  of  Oxford,  aforesaid,  tin  smith,  the  said 
Henry  Strong  not  liaving  received,  nor  being  entitled  to  receive 
any  sum  of  money  with  him  as  a  compensation  for  his  instruc- 
tion ;   and  that  said  Henry  Strong  has  misused  him,  the  said 


AND  APPRENTICES.  285 

Samuel   Hardy,  by  refusing   to  him  necessary   clothing — [or 

other  matter  of  complaint,  as  the  case  may  he.\ 

Samuel  Hardy. 

Subscribed  and  sworn  before  us, 

June  2d,  1849. 

David  Long,        ;  ^ 

T  -D  \  Justices. 

James  Kussell,  \ 

form  op  summons. 

Chenango  County^  ss. 

To  any  Constable  of  said  county,  Greeting  : 
Whereas,  Samuel  Hardy,  has  this  day  made  complaint,  on 
oath,  to  us,  the  undernamed  Justices  of  the  Peace  of  said  county, 
[here  set  forth  the  complaint  ;]  you  are  therefore  hereby  com- 
manded, in  the  name  of  the  people  of  the  state  of  New  York,  to 
summon  the  said  Henry  Strong  and  Samuel  Hardy  to  appear  be- 
fore us,  at  the  office  of  the  undernamed  David  Long,  in  Oxford, 
aforesaid,  on  the  7th  day  of  Jane,  instant,  at  two  o'clock  in  the 
afternoon,  that  we  may  examine  into,  hear,  and  determine,  said 
complaint.  Given  under  our  hands,  at  Oxford,  aforesaid,  June 
2d,  1840. 

David  Long, 


T  T,  f  Justices. 

James  Kussell, 

If  the  Justices  find  this  complaint  well  founded,  they  are  di- 
rected to  discharge  the  apprentice  from  his  service.  The  fore- 
going forms  of  the  record  and  certificate  of  discharge,  upon  the 
complaint  of  the  master,  may  be  easily  varied  and  adapted  to 
this  case. 

All  the  preceding  cases  relating  to  proceedings  against  ap- 
prentices and  masters,  for  refusing  to  serve,  ill  behavior,  misus- 
age,  &c.,  are  not  applicable  where  the  master  or  mistress  shall 
have  received,  or  shall  be  entitled  to  receive,  money  with  the 
apprentice,  as  a  compensation  for  instruction.  For,  in  cases 
where  money  is  paid,  or  agreed  to  be  paid,  the  final  order  be- 
tween the  master  and  apprentice,  can  be  made  only  by  the  Court 
of  Sessions  of  the  Peace,  as  in  the  cases  following.  (2  R.  S.  219. 
sec.  33.) 

In  case  money  is  paid  or  agreed  for,  on  the  binding,  the  per- 
son bound  may  make  the  like  complaint  against  the  master  for 


2ge  OF  MASTERS,  SERVANTS, 

cruelty,  misusage,  &c,  to  a  Justice  of  the  Peace  of  the  county 
where  he  resides.  The  Justice  is  authorized  to  make  such  order 
and  direction  between  the  master  and  apprentice  as  the  equity 
of  the  case  may  require  ;  and  if  he  cannot  reconcile  the  diffi- 
culty, must  recognize  the  master  to  appear  at  the  next  Sessions, 
in  such  sum  and  with  such  surety  as  he  shall  approve.     (Id.  sec. 

35.) 

The  two  preceding  forms  of  a  complaint  and  summons,  may 
housed  in  this  case,  upon  reversing  the  allegation  as  to  the  pay- 
ment, or  agreement  to  pay  money  on  the  binding,  and  slightly 
varying  the  conclusion  of  the  summons. 

FORM    OF    RECOGNIZANCE. 

We,  Henry  Strong  and  John  Doe,  both  of  Oxford,  in  the  county 
of  Chenango,  acknowledge  ourselves  to  owe  to  the  people  of  the 
state  of  New  York,— that  is  to  say,  the  said  Henry  Strong,  the 
sum  of  one  hundred  dollars,  and  the  said  John  Doe,  the  sum  of 
fifty  dollars,  to  be  respectively  made  and  levied  of  our  several 
floods  and  chattels,  lands  and  tenements,  to  the  use  of  said  peo- 
ple, if  default  shall  be  made  in  the  condition  following  : 

The  condition  of  this  recognizance  is  such  that,  whereas  Sam- 
uel Hardy  has  made  complaint,  on  oath,  to  the  undernamed 
Justice  of  the  Peace  of  said  county,  that  he  is  now  an  appren- 
tice lawfully  bound  to  Henry  Strong,  of  Oxford,  aforesaid, — that 
the  said  Henry  Strong  did  receive,  on  the  binding  of  the  said 
Samuel  Hardy,  [or,  "  it  was  agreed,  on  the  binding  of  said  Sam- 
uel Hardy,  that  said  Henry  Strong  should  be  paid,"  the  sum 
of  (fee,  [i?isert  the  residue  of  the  complaint ;]  and  the  said 
Henry  Strong  and  Samuel  Hardy  having  this  day  appealed  be- 
fore said  Justice,  and  the  said  Justice  thereupon  proceeded  to 
inquire  into  the  matter  of  said  complaint,  and  to  make  equitable 
order  and  direction  between  them,  was  unable  to  compound  or 
reconcile  the  difficulty  between  them  :  Now,  therefore,  if  the 
said  Henry  Strong  shall  appear  at  the  next  Court  of  Sessions  of 
the  Peace,  to  be  holden  in  and  for  said  county  of  Chenango,  and 
abide  the  order  of  said  court,  touching  the  matter  of  said  com- 
plaint, or  matter  relating  to  the  binding  or  service  of  said  Sam- 


AND  APPRENTICES.  287 

uel  Hardy,  and  not  depart  from  the  court  without  leave — then 
this  recognizance  to  be  void,  otherwise  of  force. 

Henky  Strong. 
Taken,  subscribed,  and  acknowledged, 
this  2d  day  of  June,  1849,  before  me, 

David  Long,  Justice. 

The  master  may,  in  like  manner,  where  money  was  paid  or 
agreed  to  be  paid  on  the  binding,  complain  to  a  Justice  of  the 
Peace  of  the  county,  of  the  refusal  to  serve,  misdemeanor,  or 
ill  behavior  of  the  person  bound  ;  and  the  Justice  is  bound  to 
inquire  in  the  same  manner,  and  may  recognize  the  person 
bound  to  serve  for  his  appearance  at  the  next  Court  of  Sessions. 
(2  R.  S.  220,  sec.  37.) 

The  forms  already  given,  may  be  readily  adapted  to  the  last 
mentioned  case. 

Upon  the  death  of  a  master  to  whom  a  person  may  have  been 
bound  to  service,  by  either  the  superintendents  or  overseers  of 
the  poor,  the  executors  or  administrators  of  the  master,  with  the 
written  consent  of  the  person  bound,  may  assign  the  contract  of 
service  to  any  other  person.  Such  written  consent  must  be 
acknowledged  before  a  Justice  of  the  Peace.     (Id.  sec.  41.) 

FORM    OP    CERTIFICATE    OP    ACKNOWLEDGMENT. 

I  certify  that  Samuel  Hardy  this  day  personally  appeared  be- 
fore me,  and  acknowledged  that  he  freely  executed  the  within 
[or  "  foregoing,"  or  "  aribexed,"]  written  conset. 

David  Long,  Justice, 


CHAPTER    XVI. 

DUTIES    OF    JUSTICES    OF    THE  PEACE,  IN    REFERENCE  TO    THE 
INTERNAL    POLICE    OP    THE    STATE. 

I  shall  treat  the  subjects  of  this  chapter  under  the  following 
heads : — 

1.  Of  the  Relief  and  Support  of  Indigent  Persons. 

2.  Of  Beggars  and  Vagrants. 

3.  Of  Disorderly  Persons. 

4.  The  support  of  Bastards. 

5.  The  safe  keeping  and  care  of  Lunatics. 

6.  The  care  of  Habitual  Drunkards. 

7.  Of  Profane  Cursing  and  Swearing. 

8.  Of  the  Disturbance  of  Religious  Meetings. 

9.  Of  the  observance  of  Sunday. 

10.  Of  Excise,  and  the  Regulation  of  Taverns  and  Gro- 

ceries. 

11.  Of  the  Destruction  of  Wolves,  and  other  noxious  Ani- 

mals. 

1 2.  Of  Hnvkers  and  Pedlars. 

13.  Proceedings  for    Draining    Swamps,    Marshes,    and 

other  Low  Lands. 

14.  Preservation  of  Public  Health. 

1.   Of  the  Relief  and  Support  of  Indigent  Persons. 

In  any  county  where  a  poor  house  is  established,  or  other 
place  is  provided  for  the  reception  of  the  poor,  if  a  person  apply 
for  relief  to  an  overseer  of  the  poor,  the  overseers,  or  any  of 
them,  must  inquire  into  the  state  and  circumstances  of  the  ap- 
plicant, and  if  they  find  such  person  a  proper  subject  for  perma- 
nent rcHef,  and  can  bo  safely  removed,  they  must,  by  a  written 
order,  cause  such  applicant  to  be  taken  to  the  poor  house  or 
othet  place  provided  as  aforesaid.  If  the  county  is  one  of  those 
where  the  respective  towns  are  required  to  support  their  own 
poor,  tlie  overseers  should  designate,  in  their  order  of  removal, 


DUTIES  OF  JUSTICES  OF  THE  PEACE,  &c.  289 

whether  the  pauper  is  chargeable  to  the  county  or  not.  If  no 
such  designation  is  made,  the  pauper  will  be  deemed  to  belong 
to  the  town  whose  overseers  or  overseer  make  the  order.  (1  R. 
S.  791,  sec.  43.) 

FORM    OP    ORDER    OP    REMOVAL    TO    POOR    HOUSE. 

Town  of  Norwich^  ss. — Application  for  relief  having  been 
made  by  Samuel  Jones,  a  county  (or  "  town")  pauper,  to  us, 
overseers  of  the  poor  of  the  said  town  of  Norwich,  and  we  hav- 
ing inquired  into  the  state  and  circumstances  of  the  said  Samuel 
Jones,  and  it  appearing  to  us  that  he  is  in  such  indigent  circum- 
stances, as  to  require  permanent  relief  and  support,  and  that  he 
can  be  safely  removed  ;  we  do,  therefore,  hereby  order,  that  the 
said  Samuel  Jones  be  removed  to  the  county  poor  house,  to  be 
relieved  and  provided  for  as  his  necessities  may  require. 
Given  under  our  hands,  this  1st  day  of  June,  1849. 

Jacob  King, 
Henry  West, 
Overseers  of  the  Poor. 

If  it  appear  that  the  person  applying  for  relief  requires  only 
temporary  assistance,  or  is  sick,  lame,  or  otherwise  disabled,  so 
that  he  cannot  be  conveniently  removed,  the  overseers  of  the 
poor  have  the  discretionary  right  to  expend  a  sum,  not  exceed- 
ing ten  dollars,  for  the  relief  of  such  poor  person,  or  family,  to 
be  received  from  the  county  treasurer,  to  be  by  him  charged  to 
the  county,  if  such  person  be  a  county  charge  ;  if  not,  to  be 
charged  to  the  town  where  the  relief  was  afforded.  (1  R.  S. 
792,  sec.  46.) 

No  greater  sum  than  ten  dollars  can  be  expended  or  paid,  for 
the  relief  of  any  one  poor  person,  or  one  flimily,  without  the 
sanction,  in  writing,  of  one  of  the  superintendents  of  the  poor  of 
the  county,  which  must  be  presented  to  the  county  treasurer, 
with  an  order  from  a  Justice  of  the  Peace  of  the  town.     (Id.) 

FORM    OF    justice's    ORDER. 

Town  of  Oxford,  ss  : 

To  the  County  Treasurer  of  the  County  of  Chenango. 
"Whereas,  the  overseers  of  the  ])oor  of  the  town  of  Oxford,  have 
made  application  to  me,  the  undernamed  Justice  of  the  Peace  of 

19 


290  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

said  town,  representing  that  John  Daly,  who  is  now  in  said 
town,  has  applied  to  them  for  relief  as  a  pauper — that  he  is  in 
such  indigent  circumstances,  as,  in  their  opinion,  to  require  the 
relief  sought — and  that  he  is  so  sick,  (or  "  lame,"  or  "  disabled,") 
that  he  cannot  be  conveniently  removed  to  the  county  poor 
house.  And  whereas,  since  said  application  to  me,  1  have  exa- 
mined into  the  facts  and  circumstances,  and  find  that  the  said 
representation  is,  in  all  respects  true,  and  that  said  John  Daly  re- 
quires temporary  relief.  The  said  county  treasurer  is,  therefore, 
hereby  ordered  to  pay  to  the  said  overseers,  to  be  expended  in 
the  relief  of  the  said  John  Daly,  the  sum  of  fifteen  dollars.  Da- 
ted June  1st,  1849. 

David  Long,  Justice. 

The  sanction  of  one  of  the  county  superintendents  of  the  poor, 
may  be  endorsed  on  the  order,  thus : 

'•I  hereby  sanction  the  payment  of  the  within  mentioned  sum, 
by  the  county  treasurer,  to  the  overseers  of  the  poor  of  the  town 
of  Oxford,  to  be  expended  by  the  said  overseers  for  the  relief  of 
the  person  mentioned,  and  described  in  the  within  order.  Dated 
June  1st,  1849. 

Henry  Strong,  Superintendent  of  the  Poor 
for  the  County  of  Chenango." 

If  application  for  relief  be  made  in  any  of  those  counties 
where  no  county  poor  house,  or  other  place,  shall  have  been  pro- 
vided for  the  reception  of  the  poor,  the  overseers  of  the  poor 
must,  with  the  assistance  of  some  Justice  of  the  Peace  of  the 
same  town,  inquire  into  the  facts  and  circumstances  of  the  case, 
and  make  an  order,  in  writing,  for  such  allowance,  weekly  or 
otherwise,  as  the  Justice  and  one  of  the  overseers  think  required 
by  the  necessities  of  the  poor  person.     (Id.  47.) 


ORDER    FOR    RELIEF. 


Chenango  County, 
Town  of  Oxford, 


^  ss. 


"NVlKjrcas,  Ptjtcr  Black,  of  the  said  town,  a  poor  person,  lias 
ap[)licd  for  relief  to  the  overseers  of  the  poor,  of  the  said  town, 
and  the  said  overseers,  and  David  Long,  a  Justice;  of  the  Peace 
of  tlic  said  town,  have  in(juircd  into  the  facts  and  circumstan- 


INTERNAL  POLICE  OF  THE  STATE.  291 

COS  of  tlie  case,  and  have  ascertained  that  the  said  Peter  Black 
is  sick,  and  in  such  indigent  circumstances  as  to  require  relief; 
and  that  he  has  a  family,  consisting  of  a  wife  and  five  children, 
under  the  age  of  ten  years,  who  are  dependent  on  him  for  sup- 
port. It  is,  therefore,  hereby  ordered,  that  there  shall  be  allowed, 
for  the  relief  of  the  said  Peter  Black,  and  his  family,  weekly, 
the  sum  of  six  dollars,  and  also,  such  further  sum  for  medicine, 
and  medical  attendance,  as  shall  be  necessary,  until  the  ne- 
cessity for  such  relief  shall  cease.  Dated  this  1st  day  of  June. 
1849. 

David  Long,  Justice. 

Jacob  King,       j 

Tj  isr  f  Overseeis. 

Henry  West,  ) 

If  the  pauper  has  a  legal  settlement  in  the  town  where  appli- 
cation for  relief  is  made,  or  in  any  other  town  of  the  same 
county,  the  overseers  must  apply  the  moneys  so  allowed,  to  the 
relief  and  support  of  the  pauper.  The  moneys  paid  by  them,  or 
contracted  to  be  paid  pursuant  to  the  order,  must  be  drawn  by 
them  from  the  county  treasurer  on  producing  the  order,  out  of 
the  funds  in  his  hands,  belonging  to  the  town.  (1.  R.  S.  792, 
sec.  48.) 

If  the  pauper  has  no  legal  settlement  in  the  same  county,  the 
overseers  must  immediately  give  notice  to  one  of  the  county  su- 
perintendents ;  and,  until  the  county  superintendents  take  charge 
of  the  support  of  the  pauper,  the  overseers  are  to  provide  for  his 
relief  and  support,  the  expense  of  which,  from  the  time  of  giv- 
ing the  notice,  is  to  be  paid  to  the  overseers  by  the  county  trea- 
surer, on  the  production  of  the  order,  and  proof,  by  affidavit,  of 
the  time  of  the  giving  the  notice.*     (Id.  49.) 

*  Any  person  of  full  age,  who  is  a  resident  and  inhabitant  of  any  town  for  one 
year,  is  deemed  settled  in  such  town.  A  minor  may  be  emancipated  from  his  or 
her  father,  and  may  gain  a  settlement. 

1.  If  a  female,  by  being  married  and  living  for  one  year  with  her  husband,  in 
which  case  the  husband's  settlement  determines  that  of  the  wife. 

2.  If  a  male,  by  being  married  and  residing  for  one  year  separately  from  the  fa- 
mily of  his  father. 

3.  By  being  bound  as  an  apprentice,  and  serving  one  year. 

4.  By  being  hired,  and  actually  serving  for  one  year,  for  wages  to  be  paid  to  sucii 
mhior. 

A  woman  of  full  age,  by  marrying,  acquires  the  settlement  of  her  husband,  if  he 
have  anv. 


292  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

The  father,  mother,  and  children,  who  are  of  sufficient  ability, 
of  any  poor  person,  who  is  bHnd,  old,  lame,  impotent,  or  decre- 
pit, so  as  to  be  unable  to  work  or  maintain  himself,  are  required, 
by  statute,  at  their  own  charge,  to  relieve  and  maintain  such 
poor  person.     (1  R.  S.  782,  sec.  1.) 

The  application  to  compel  such  relief,  is  to  be  made  by  the 
overseers  of  the  poor  of  the  town  where  such  poor  person  may 
be,  to  the  Court  of  Sessions  of  the  Peace  of  the  county  where 
such  relative  may  dwell  ;  of  which  application,  at  least  fourteen 
days  notice,  in  writing,  must  be  given,  by  serving  the  notice  per- 
sonally, or  by  leaving  it  at  the  last  place  of  dwelling  of  the  in- 
dividual to  whom  the  same  may  be  directed,  in  case  of  his  ab- 
sence therefrom,  with  some  person  of  mature  age.     (Sec.  2.) 

FORM    OF    NOTICE. 

To  Mr.  John  Doe, 

You  are  hereby  notified,  that  an  application  will  be  made  by 
us,  the  undersigned,  the  overseers  of  the  poor  of  the  town  of 
Norwich,  in  the  county  of  Chenango,  to  the  Court  of  Sessions 
of  the  Peace  of  the  said  county,  at  the  court  house,  in  Norwich, 
aforesaid,  on  the  first  Tuesday  of  June  next,  at  ten  o'clock  in  the 
forenoon,  for  an  order  to  compel  you  to  relieve  and  maintain 
your  son  Henry,  of  the  said  town  of  Norwich,  a  poor  person, 
who  is  lame  and  decrepit,  so  as  to  be  unable  to  work  to  main- 
tain himself.     Dated  the  15th  day  of  May,  1849. 

Jacob  King,      }  ^ 

'      >  Overseers. 
Henry  West,  ) 

The  application  to  the  sessions  may  be  by  petition. 


Until  a  poor  person  gains  a  settlement  in  liis  own  right,  liis  settlement  is  deemed 
that  of  hiH  fathsr  or  motlier.  But  no  cliild,  born  in  any  place,  and  used  and  occu- 
pied as  a  residence  for  the  poor  of  any  town,  city,  or  county,  can  gain  any  settle- 
ment merely  by  reason  of  the  place  of  such  birth;  nor  can  any  child,  horn  while 
the  mother  Ih  a  county  pauper,  gain  any  settlement  by  reason  of  tlie  place  of  its 
birth.    (2  R.  S.  7R1),  m-c.  Xl) 

No  reHidcnce  of  any  person,  a3  a  i)aupcr,  in  the  county  poor  house,  or  place  pro- 
vided for  the  Bupjiort  of  the  poor,  or  in  any  town  while  supported  at  the  expense  of 
any  other  town  or  county,  can  operate  to  give  sucii  pauper  a  settlement  in  the 
town  where  such  actual  residence  may  be  had.    (Id.  sec.  34.) 


INTERNAL  POLICE  OF  THE  STATE,  293 


FORM    OP    PETITION. 

To  the  Court  of  Sessions  of  the  Peace  of  the  County  of 

Chenango. 

The  Petition  of  Jacob  King  and  Henry  West,  overseers  of  the 

poor  of  the  town  of  Norwich,  county  aforesaid,  respectfully 

showeth  : 

That  Henry  Doe,  a  poor  person,  wlio  resides  in  the  said  town, 
is  lame  and  decrepit,  so  as  to  be  unable  to  work  to  maintain 
himself;  and  that  John  Doe,  of  the  said  town  of  Norwich,  the 
father  of  the  said  Henry,  is  of  sufficient  ability  to  relieve  and 
maintain  the  said  Henry,  but  has  neglected  and  refused  so  to  do, 
although  requested  by  your  petitioners. 

Your  petitioners,  therefore  pray,  that  the  said  John  Doe  may 
be  compelled,  by  this  honourable  court,  to  relieve  and  maintain 
his  said  son  Henry,  pursuant  to  the  statute  in  such  case  made 
and  provided.     Dated  the  1st  day  of  June,  1849. 

Jacob  King,      )  ^ 

rx  -<:,r         I  Overseers. 

Henry  West,  ) 

form  of  order  by  the  sessions. 

Chenmtgo  County  Sessions. 
Jacob  King  and  Henry  West, 
Overseers  of  the  Poor  of  the 
Town  of  Norwich,  |.  J^^^e  8th,  1849. 

against  \ 

John  Doe.  J 

On  reading  and  filing  the  petition  of  the  said  overseers,  and 
after  hearing  the  proofs  and  allegations  of  both  the  said  parties, 
whereby  it  appears  to  the  said  court  that  Henry  Doe,  a  poor 
person  who  resides  in  the  said  town  of  Norwich,  is  lame  and 
decrepit,  so  as  to  be  unable  to  work  to  maintain  himself,  and 
that  John  Doe,  of  the  said  town  of  Norwich,  the  father  of  the 
said  Henry,  is  of  sufficient  ability  to  relieve  and  maintain  the 
said  Henry,  but  has  neglected  and  refused  so  to  do,  although 
requested  by  the  said  overseers.  It  is,  therefore,  ordered  by  the 
said  court,  that  the  said  John  Doe,  until  the  further  order  of  this 
court,  shall  relieve  and  maintain  his  said  son  Henry,  in  such 
manner  as  shall  be  approved  by  the  overseers  of  the  poor  of  the 
said  town  of  Norwich,  or  shall  pay  to  the  said  overseers  of  the 


294  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

poor  weekly,  the  sum  of  three  dollars,  which  sum  the  said  court 
adjudge  to  be  necessary  for  the  support  of  the  said  Henry.  And 
it  is  further  ordered,  that  the  said  John  Doe  pay  to  the  said  over- 
seers of  the  poor,  the  sum  of  five  dollars,  for  the  costs  and  ex- 
penses of  this  application. 

The  father  of  the  decrepit  person,  is  first  liable  for  his  sup- 
port. If  the  father  is  not  living,  or  is  not  of  sufficient  ability, 
then  the  children  of  such  decrepit  person.  If  there  are  no  chil- 
dren, or  they  are  not  of  sufficient  ability,  then  the  mother.  (1 
R.  S.  782,  sec.  3.) 

If  it  appears  that  any  such  relative  is  unable  wholly  to  main- 
tain such  poor  person,  but  is  able  to  contribute  towards  his  sup- 
port, the  court  may  in  its  discretion,  direct  two  or  more  relatives 
of  different  degrees  to  maintain  such  poor  person,  and  must 
prescribe  the  proportion  which  each  shall  contribute  for  that 
purpose  ;  and  if  it  appear  that  the  relatives  liable  as  aforesaid, 
are  not  of  sufficient  ability  wholly  to  maintain  such  poor  per- 
son, but  are  able  to  contribute  something,  the  court  is  required 
to  direct  the  sum  in  proportion  to  their  ability,  which  the  rela- 
tives shall  pay  weekly  for  that  purpose.     (Id.  sec.  4.) 

The  order  may  specify  the  time  during  which  the  relatives 
shall  maintain  the  poor  person,  or  during  which  any  of  the 
sums  so  directed  by  the  courf,  shall  be  paid  ;  or  it  may  be  in- 
definite, and  until  the  further  order  of  the  court.  The  court 
may,  from  time  to  time,  vary  the  order,  whenever  circumstances 
shall  require  it,  on  the  application  of  any  relative  affected  by  the 
order,  or  of  any  overseers  of  the  poor  of  the  town,  upon  fourteen 
days  notice  being  given.     (1  R.  S.  783,  sec.  5.) 

The  payment  of  the  costs  and  expenses  of  application  to  the 
court  of  sessions,  as  well  as  obedience  to  the  order  of  mainte- 
nance may  be  enforced  by  process  of  attachment.     (Id.  sec.  6.) 

If  any  relative  who  shall  have  been  required,  by  the  order, 
to  relieve  or  maintain  any  poor  person,  shall  neglect  to  do  so, 
in  such  manner  as  shall  be  approved  by  the  overseers  of  the 
poor  of  the  town  where  such  poor  person  may  be,  and  shall  ne- 
glect to  pay  to  the  overseers  weekly,  the  sum  prescribed  by  the 
court  for  tlie  support  of  such  poor  person,  the  overseers  may 
maintain  an  action  against  such  relative,  and  recover  the  sum 
so  prescribed  by  the  court  for  every  week  the  order  shall  have 
been  disobeyed,  up  to  the  time  of  the  recovery,  with  costs  of 
suit,  for  the  use  of  the  poor.     (Id.  sec.  7.) 


INTERiSTAL  POLICE  OF  THE  STATE.  295 

Whenever  the  father  or  mother,  being  a  widow,  or  Uving  se- 
parate from  her  husband,  shall  abscond  from  their  children,  or  a 
husband  from  his  wife,  leaving  any  of  them  chargeable,  or 
likely  to  become  chargeable  upon  the  public  for  their  support, 
the  overseers  of  the  poor  of  the  town  where  such  wife  or  chil- 
dren may  be,  may  apply  to  any  two  Justices  of  the  Peace  of  the 
county  in  which  any  estate,  real  or  personal,  of  the  said  father, 
mother,  or  husband,  may  be  situated,  for  a  warrant  to  seize  the 
same.  Upon  due  proof  of  the  facts  aforesaid,  the  Justices,  to 
whom  application  is  made,  must  issue  their  warrant,  authoriz- 
ing the  overseers  to  take  and  seize  the  goods,  chattels,  effects, 
things  in  action,  and  the  lands  and  tenements  of  the  person  so 
absconding.     (Id.  sec.  8.) 

FORM    OF    WARRANT. 

Chenango  County,  ss. 

To  the  Overseers  of  the  Poor  of  the  Town  of  Norwich,  in 

said  County. 
Whereas,  it  appears  to  us,  the  undersigned,  two  of  the  Justi- 
ces of  the  Peace  of  the  said  county,  as  well  upon  the  complaint 
and  application  of  you,  the  said  overseers,  as  upon  due  proof 
upon  oath,  before  us  made,  that  Richard  Roe,  late  of  the  said, 
town  of  Norwich,  has  absconded  from  Sarah,  his  wife,  and  John 
and  Margaret,  his  children,  leaving  them  chargeable,  [or  "  likely 
to  become  chargeable,"]  upon  the  jDublic  for  their  support,  and 
that  the  said  Richard  Roe  has  some  estate  in  the  said  county. 
We  do,  therefore,  authorize  you,  the  said  overseers  of  the  poor, 
to  take  and  seize  the  goods,  chattels,  effects,  things  in  action, 
and  the  lands  and  tenements  of  the  said  Richard  Roe,  wherever 
the  same  may  be  found,  in  the  said  county.  And  do  you  imme- 
diately make  an  inventory  of  the  property  so  seized  by  you,  and 
return  the  same,  together  with  your  proceedings,  to  the  next 
Court  of  Sessions  of  the  Peace  of  said  county. 
Giren  under  my  hand,  this  5th  day  of  June,  1849. 

James  Brewster,  ) 

T  o^  {  Justices  of  the  Peace. 

John  -Uogardus,      ) 

The  overseers,  by  virtue  of  the  warrant,  may  seize  the  pro- 
perty wherever  it  may  be  found  in  the  same  county  ;  and  they 
are  vested  with  all  the  right  and  title  to  it  which  the  person  ab- 


296  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

sconding  had,  at  the  thne  of  his  or  her  departure.  All  sales  and 
transfers  of  any  personal  property  left  in  the  county  from  which 
such  person  absconded,  made  by  him  after  the  issuing  of  the 
warrant,  whether  in  payment  for  an  antecedent  debt,  or  for  a 
new  consideration  are  absolutely  void.     (I  R.  S.  783,  sec.  9.) 

The  overseers  must  immediately  make  an  inventory  of  the 
property  seized  by  them,  and  return  the  same,  together  with 
their  proceedings,  to  the  next  Court  of  Sessions  of  the^^Peace  of 
the  county,  there  to  be  filed.     (Id.) 

FORM    OF    INVENTORY. 

An  inventory  of  the  property  of  Richard  Roe,  seized  the  5th 
day  of  June,  1S49,  by  Jacob  King  and  Henry  West,  overseers 
of  the  poor  of  the  town  of  Norwich,  by  virtue  of  the  warrant 
hereto  annexed,  to  wit : 

ten  sheep,  one  table, 

one  cow,  six  chairs, 

four  swine,  one  bureau. 

All  which  we  certify,  and  return  to  the  Court  of  Sessions  of 
the  Peace  of  the  county  of  Chenango,  as  by  the  said  warrant 
we  arc  commanded.     Dated  June  5th,  1849. 

Jacob  King, 
Henry  West, 


Overseers. 


The  court,  upon  inquiring  into  the  facts  and  circumstances  of 
the  case,  may  confirm  the  warrant  and  seizure,  or  may  dis- 
charge the  same  ;  and  if  the  same  be  confirmed,  shall,  from 
time  to  time,  direct  what  part  of  the  personal  property  shall  be 
sold,  and  how  much  of  the  proceeds  of  the  sale,  and  of  the  rents 
and  profits  of  the  real  estate,  if  any,  shall  be  applied  towards 
the  maintenance  of  the  children  or  wife  of  the  person  so  ab- 
conding.     (1  R.  S.  783,  sec.  10.) 

FORM    OF    ORDER    BY    THE    SESSIONS. 

Chenango  County  Sessions. 
In  the  matter  of  the  Overseers  ^ 
OF  THK  Poor  of  the  town  of 
Norwich  V 

against  I 

Richard  Roe.  J 

On  reading  and  filing  a  warrant  and  inventory,  whereby  it 


INTERNAL  POLICE  OF  THE  STATE.  297 

appears  that  the  said  overseers  of  the  poor  have  seized  certain 
property  of  the  said  Richard  Roe,  late  of  the  said  town  of  Nor- 
wich, who  has  absconded  from  Sarah,  his  wife,  and  John  and 
Margaret,  his  children,  leaving  them  chargeable  [or  "  likely  to 
become  chargeahle'^]  upon  the  public  for  their  support,  and  upon 
inquiry  into  the  facts  and  circumstances  of  the  case :  It  is  or- 
dered, that  the  said  warrant  and  seizure  be  confirmed  ;  and  it 
is  further  ordered,  that  all  the  personal  property  so  seized,  be 
sold  by  the  said  overseers,  and  that  out  of  the  proceeds  of  such 
sale,  the  sum  of  five  dollars,  weekly,  shall  be  applied  by  the 
said  overseers,  towards  the  maintenance  of  the  said  wife  and 
children  of  the  said  Richard  Roe. 

The  overseers  must  sell  at  public  vendue,  the  property  so  or- 
dered to  be  sold,  and  receive  the  rents  and  profits  of  the  real  es- 
tate of  the  person  so  absconding  ;  and  in  those  towns  which  are 
required  to  support  their  own  poor,  the  overseers  must  apply  the 
same  to  the  maintaining,  bringing  up,  and  providing  for  the 
wife,  child,  or  children,  so  left  and  abandoned,  and  for  that  pur- 
pose shall  draw  on  the  county  treasurer.  The  overseers  are  re- 
quired to  account  to  the  court  granting  the  oider,  for  all  moneys 
so  received  by  them,  and  for  the  application  thereof,  from  time 
to  time,  and  may  be  compelled  by  the  said  court,  to  render  such 
account  at  any  time.     (1  R.  S.  784,  sec.  12.) 

If  the  person  absconding  retin-n  and  support  the  wife  or  chil- 
dren abandoned,  or  give  security,  approved  by  the  Justices,  to 
the  overseers  of  the  poor  of  the  town,  that  the  relations  so  aban- 
doned shall  not  become  chargeable  to  the  town  or  county,  then 
the  Justices  who  issued  the  warrant,  must,  by  an  order,  dis- 
charge the  warrant,  and  the  property  seized  must  be  restored. 
(Id.  sec.  11.) 

The  statute  does  not  prescribe  the  kind  of  security  which  the 
Justices  may  require.  In  analogy  to  other  similar  cases,  I  se- 
lect for  the  form  a  bond. 

FORM    OF    SECURITY. 

Know  all  men  by  these  presents,  that  we,  Richard  Roe  and 
John  Smith,  both  of  Norwich,  in  the  county  of  Chenango,  are 
held  and  firmly  bound  unto  Jacob  King  and  Henry  West,  over- 
seers of  the  poor  of  said  town,  in  the  sum  of  five  hundred  dol- 
lars, for  the  payment  whereof,  to  the  said  overseers  of  the  poor. 


298  DUTIES  OF  JUSTICES  OF  THE  PEACE 

or  their  successors  in  oillce,  wc  bind  ourselves,  our  heirs,  execu- 
tors and  administrators,  jointly  and  severally,  firmly  by  these 
presents.  Sealed  with  our  seals,  and  dated  the  10th  day  of  June, 
1849. 

The  condition  of  this  obligation  is  such,  that  whereas  the  said 
overseers  of  the  poor  have  lately  seized  the  property  of  said 
Richard  Roe,  under  a  warrant  issued  by  the  undernamed  James 
Brewster  and  John  Bogardus,  Justices  of  the  said  town,  upon 
due  proof  to  them  given,  that  said  Richard  Roe  had  absconded 
from  his  wife  and  children,  leaving  them  chargeable  [or  ^'-likely 
to  become  chargeable^'']  upon  the  public  for  support ;  and  the  said 
Richard  Roe,  having  returned,  and  being  desirous  of  having  his 
property  so  taken,  restored  to  him  ;  now,  therefore,  if  the  said 
wife  and  children  so  abandoned,  shall  not  become,  nor  hereafter 
be  chargeable,  either  to  said  town  or  county,  then  this  obliga- 
tion is  to  be  void,  otherwise  of  force. 

Richard  Roe,  [l.  s.] 
John  Smith,      [l.  s.] 
Sealed  and  delivered,  and  the  security 

approved  by  and  before  us, 

James  Brewster, 

Justices. 


:er,  j 


John  Bogardu 


FORM    OF    order    TO    DISCHARGE    THE    WARRANT. 

Chenango  County^  ss. 

To  the  Overseers  of  the  Poor  of  the  Town  of  Norwich,  in  said 

County. 

Whereas,  by  our  warrant  to  you  directed,  bearing  date  the 
5th  day  of  June,  1849,  we  authorized  you  to  seize  the  goods, 
chattels,  effects,  things  in  action,  and  the  lands  and  tenements 
of  Richard  Roe,  of  said  town,  upon  due  proof  to  us,  that  said 
Richard  Roe  had  absconded  from  his  wife  and  children  leaving 
them  chargeable  [or  "  likely  to  be  chargeable'^]  to  the  public  for 
support.  And  whereas,  the  said  Richard  Roe  has  returned  and 
sufjporled,  and  continues  to  support  his  wife  and  children  so 
abandoned,  [or  "  given  security  to  the  said  overseers  of  the  jjoor, 
satisfactorily  to  iis,  that  the  ifife  (Did  cJiildrcn  so  abandoned^ 
shall  not  become  chargeable  either  to  said  toirn  or  county.''']  We 
do,  thorclbre,  herel)y  discharge  our  said  warrant,  and  direct  the 


INTERNAL  POLICE  OF  THE  STATE.  299 

property  of  the  said  Richard  R,oe,  taken  by  virtue  thereof,  to  he 

restored  to  him.     Witness  our  hands,  June  10th,  1849. 

James  Brewster,  3 

T         T>  f  Justices. 

JOHN  UOGARDUS,         ) 

In  those  counties  where  all  the  poor  are  a  charge  tipon  the 
county,  the  superintendents  of  the  poor  are  vested  with  the  same 
powers  as  overseers  of  the  poor,  in  respect  to  compelhng  rela- 
tions to  maintain  paupers,  and  in  respect  to  the  seizure  of  the 
property  of  an  absconding  parent  or  husband.  (1  R.  S.  sec.  784, 
sec.  13.) 

When  the  proceedings  are  on  behalf  of  the  superintendents, 
the  preceding  forms  may  be  readily  altered  to  suit  the  case. 

2.   Of  Beggars  mid   Vagrants. 

The  statute  defines  vagrants  to  be — "  All  idle  persons,  who 
not  having  visible  means  to  maintain  themselves,  live  without 
employment — all  persons  wandering  abroad,  and  lodging  in 
taverns,  groceries,  beer  houses,  out  houses,  market  places,  sheds 
or  barns,  or  in  the  open  air,  and  not  giving  a  good  account  of 
themselves — all  persons  wandering  abroad  and  begging,  or  who 
go  about  from  door  to  door,  or  place  themselves  in  the  streets, 
highways,  passages,  or  other  public  places,  to  beg  or  receive 
alms."     (1  R.  S.  802,  sec.  1.) 

It  is  made  the  duty  of  every  constable,  or  other  peace  officer, 
whenever  required  by  any  person,  to  carry  a  vagrant  before  a 
Justice  of  the  Peace  of  the  same  town  ;  or  if  he  be  found  in  a 
city,  before  the  mayor,  recorder,  or  an  alderman,  for  the  purpose 
of  examination.  (Id,  sec.  2.)  For  such  arrest  no  process  is 
required. 

The  offender  may,  and  probably  would,  in  most  cases,  be 
proceeded  against  by  complaint  and  warrant.  I  shall,  there- 
fore, propose  forms  of  a  complaint  and  warrant,  giving  therein 
the  first  offence  mentioned  in  the  statute.  These  forms  may  be 
readily  varied  to  suit  any  supposable  case. 

FORM    OP    COMPLAINT. 

Chenango  Cotinti/,  ss. — John  Smith  of  the  town  of  Norwich 
in  said  county,  being  duly  sworn,  makes  oath  and  complains, 
before  James  Jackson,  one  of  the  Justices  of  the  Peace  of  the 


300  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

said  town,  that  Peter  Pray  is  now  in  said  town,  and  is  an  idle 
person,  not  having  any  visible  means  to  maintain  himself,  and 
being  without  employment,  and  is,  as  deponent  believes,  a  va- 
grant, within  the  meaning  and  intent  of  the  statute,  in  such 
case  made  and  provided. 

John  Smith. 
Subscribed  and  sworn  before  me,  this  1st  day 
of  July,  1849. 

James  Jackson,  Justice. 

FORM    OF    WARRANT. 

Chenango  County^  ss  : 

To  any  Constable  of  said  County,  Greeting  : 

Whereas,  John  Smith  of  Norwich,  in  said  county,  has  this 
day  made  complaint  on  oath,  before  me,  the  undernamed  Justice 
of  the  Peace  of  said  town,  that  Peter  Pray,  &c. — \Jiere  set  out 
the  complaint.^  You  are,  therefore,  hereby  commanded,  in  the 
name  of  the  people  of  the  state  of  New  York,  forthwith  to 
arrest  the  said  Peter  Pray,  and  bring  him  before  me,  the  said 
Justice,  at  my  office  in  Norwich  aforesaid,  to  answer  to  said 
complaint,  and  to  be  otherwise  dealt  with  in  the  premises  as  the 
law  requires. 

Given  under  my  hand  at  Norwich  aforesaid,  this  1st  day  of 
July,  1849. 

J  AMES  Jackson,  Justice. 

When  the  person  charged  as  a  vagrant,  is  brought  before  the 
Justice,  cither  with  or  without  process,  the  Justice  must  take 
his  examination,  and  hear  the  proofs  oiTcred  ;  and  if,  upon  his 
confession,  or  by  competent  testimony,  he  is  found  to  be  a 
vagrant,  within  the  description  above  mentioned,  the  Justice 
must  make  and  sign  a  record  of  his  conviction,  which  must  be 
filed  in  the  office  of  the  clerk  of  the  county.  (1  R.  S.  802,  sec.  2.) 

The  power  of  a  Justice  of  the  Peace  to  convict  an  offender 
in  a  sunnnary  way,  witliout  a  trial  by  jury,  is  in  restraint  of  the 
common  law,  and  nothing  will  be  presu??ied  in  favor  of  this 
branch  of  iiis  office  ;  but  the  intendment  will  be  against  it. 
Where,  therefore,  this  especial  power  is  given  to  him  by  statute, 
it  must  appear  that  he  has  strictly  pursued  it ;  otherwise  his 
proceedings  will  be  void. 

There  Uiust,  in  the  first  place,  be  an  information,  or  charge 


INTERNAL  POLICE  OF  THE  STATE.  301 

against  a  person  ;  then  he  must  be  summoned,  or  have  notice 
of  such  charge,  and  have  an  opportunity  to  make  his  defence  ; 
and  the  evidence  against  him  must  be  such  as  the  common  law 
approves,  unless  the  statute  specially  direct  otherwise ;  then,  if 
the  person  be  found  guilty,  there  must  be  a  conviction,  judg- 
ment, and  execution,  according  to  the  course  of  the  common 
law,  directed  and  influenced  by  the  special  authority  given  by 
statute  ;*  and  finally,  there  must  be  a  record  of  the  whole  pro- 
ceedings, wherein  the  Justice  must  set  forth  the  ti  a  • 
manner  and  circumstances,  so  that  if  an  appeal  should  be  taken, 
it  may  appear  that  he  has  conformed  to  the  law,  and  not  ex- 
ceeded the  bounds  prescribed  to  his  jurisdiction. 

A  conviction  (in  the  sense  in  which  it  is  here  used,)  is  a 
record  of  the  summary  proceedings  upon  any  penal  statute, 
before  one  or  more  Justices  of  the  Peace,  or  other  persons  duly 
authorized,  in  a  case  where  the  offender  has  been  convicted  and 
sentenced. 

The  following  observations  on  the  form  of  a  record  of  con- 
viction, are  principally  intended  for  those  cases  in  which  no 
directions  are  given  by  the  statute  authorizing  this  mode  of 
proceeding  in  the  particular  instance. 

When  the  conviction  proceeds  on  the  information  of  some 
person,  and  not  on  the  Justice's  own  knowledge,  that  informa- 
tion should  be  set  forth,  stating  the  day  when  it  was  taken,  that 
it  may  appear  to  have  been  given  within  the  time  limited  by 
law ;  the  place  where  it  was  taken,  that  it  may  appear  that  the 
Justice  was  acting  within  the  limits  of  his  jurisdiction  ;  the 
name  of  the  Justice  or  Justices  to  whom  it  was  given  ;  and  if 
directed  to  be  taken  on  oath,  it  should  be  stated  to  be  so  taken. 
The  facts  by  which  the  information  is  supported,  must  have 
arisen  before  the  information  Avas  given  ;  for  if  they  appear  to 
be  subsequent  to  the  information,  the  conviction  will  be  quashed. 
The  time  of  committing  the  offence,  must  likewise  be  stated 
for  the  same  reason  as  the  time  of  giving  the  information,  that 
from  the  day  of  the  offence,  and  the  day  of  commencing  the 
prosecution,  it  may  appear  that  it  was  commenced  in  due  time, 
and  also  that  the  party  may  be  enabled  to  defend  himself 
against  a  second  charge.     But  the  offence  need  not  be  proved 


*  The  rule  of  cnpimon   law,  that  statutes  in  derogation  of  that  law,  are  to  bs 
strictly  construed,  has  no  application  to  the  Code.    (Code,  sec.  467  ) 


302  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

to  have  been  committed  precisely  on  the  day  alleged  ;  it  has 
been  held,  that  it  was  sufficient  to  state  that  it  was  between 
such  and  such  a  time. 

The  information  must  state  the  place  where  the  offence  was 
committed,  that  it  may  appear  to  have  arisen  within  the  juris- 
diction of  the  Justice  ;  and  it  must  be  proved  to  have  been  com- 
mitted in  the  place  laid  in  the  information  ;  for  where  the  juris- 
diction of  the  magistrates  who  try  the  offence  is  local,  the  offence 
must  be  proved  to  have  been  committed  within  their  juris- 
diction. 

The  particular  manner  in  which  the  offence  was  committed, 
must  be  set  forth  and  described  in  the  manner  directed  by  the 
act  creating  it  an  offence,  that  it  may  appear  to  come  within  its 
provisions. 

Whenever  the  statute  inflicts  a  penalty  for  an  offence  created 
b}''  it,  upon  conviction  before  one  or  more  Justices  of  the  Peace, 
but  there  is  an  exception  in  the  enacting  clause  of  persons 
under  particular  circumstances,  it  is  necessary  to  state  in  the 
information,  that  the  defendant  is  not  within  any  of  the  excep- 
tions. And  it  seems  immaterial  whether  the  exception  be  in 
the  same  section,  or  a  preceding  section,  or  in  a  preceding  act, 
referred  to  by  the  enacting  clause. 

But  where  the  exemption  is  contained  under  a  proviso,  it  is 
matter  of  defence,  and  therefore  it  is  not  necessary  to  state  in 
the  conviction  that  the  defendant  is  not  within  such  proviso. 

It  is  a  fundamental  rule,  that  the  party  should  be  summoned, 
before  he  is  convicted.  But  the  defendant's  appearance  will,  in 
this  case,  as  in  other  cases  of  process,  cure  not  only  all  defects 
and  informalities  in  the  summons,  but  also  the  want  of  a 
sunnnons. 

It  the  party  on  being  summoned,  do  not  appear,  proof  having 
been  made  on  oath  of  the  service  of  the  sunnnons,  the  Justice 
may  proceed  to  convict  him,  for  he  will  not  be  allowed,  by  his 
own  dcfauU,  to  escape  the  penaUy  of  tiic  law. 

The  information  should  be  read  to  the  defendant,  and  he 
should  ho  put  to  plead  thereto  ;  that  is,  either  to  confess  or  deny 
it,  Ijefore  the  Justice  })rocceds  to  hear  evidence  in  its  support. 

Tli<!  defendant's  confession  of  the  chaige  before  the  Justice, 
is  the  strongest  evidence  of  the  offence.  For  though  a  statute 
should  direct  a  conviction  to  be  "  Upon  the  oath  of  one  or  two 
credible  witnesses,"  without  adding,  "  Or,  by  confession  of  the 


INTERNAL  POLICE  OF  THE  STATE.  393 

offender,"  yet  conviction  upon  his  confession  before  the  Justice, 
has  been  held  sufficient ;  and  what  is  still  stronger,  it  has  been 
held,  tliat  a  confession  made  to  others,  and  not  to  the  Justice,  if 
proved  by  such  persons  to  his  satisfaction,  in  the  presence  of 
the  defendant,  will  be  sufficient  evidence  to  convict.  Where 
the  defendant  confesses  the  charge,  it  seems  to  be  sufficient  only 
to  state  in  the  conviction,  the  information,  the  defendant's  ap-. 
pearance,  the  confession,  and  adjudication. 

But  a  confession  will  extend  no  further  than  to  the  facts 
charged  in  the  information  ;  therefore,  if  the  offender  be  not 
brought  by  the  information  within  the  act  upon  which  the  con- 
viction is  founded,  the  defendant's  confession  will  not  make  the 
conviction  good. 

The  informer  where  he  receives  part  of  the  penalty,  cannot 
be  a  witness.  For  which  reason,  it  is  requisite  to  name  the 
witness  in  the  conviction,  that  it  may  appear  that  it  is  not  the 
same  person  with  the  informer. 

It  is  essential  that  the  evidence  be  given  in  the  presence  of 
the  defendant,  that  he  may  have  an  opportunity  of  cross-exam- 
ining the  witness  ;  and  it  must  appear  on  the  face  of  the  convic- 
tion, that  the  evidence  was  so  given.  But  if  it  appear  on  the 
conviction  that  the  evidence  was  given  on  the  same  day  that 
the  defendant  appeared  and  pleaded,  the  court  will  presume  that 
it  was  given  in  his  presence. 

The  evidence  should  be  set  forth  particularly  in  the  convic- 
tion, that  the  court  may  judge  whether  the  Justice  has  convicted 
on  proper  evidence. 

The  conviction  should  state  not  merely  the  result  of  the  evi- 
dence, but  the  whole  evidence  itself  It  is  not  sufficient  that  the 
witness  swear  generally  that  the  defendant  was  guilty  of  the 
premises ;  particular  facts  must  be  proved  and  stated. 

The  magistrate  is  the  sole  judge  of  the  weight  of  the  evidence  ; 
and  it  is  entirely  and  conclusively  for  his  consideration,  and  he 
is  placed  in  the  situation  of  a  jury,  and  the  court,  before  whom 
the  conviction  is  brought  on  appeal,  will  not  substitute  them- 
selves in  the  place  of  the  Justices  acting  as  jurymen  ;  they  can- 
not judge  of  the  credit  due  to  witnesses  whom  they  did  not  hear 
examined,  and  can  only  look  to  the  form  of  the  conviction,  and 
see  that  the  party,  if  convicted,  has  been  convicted  by  legal  evi- 
dence. 

There  must  be  a  judgment  in  the  conviction,  stating  not  only 


304  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

that  the  defendant  was  guilty,  but  likewise  adjudging  the  fine 
or  forfeiture  to  which  the  party  is  subjected. 

The  Justice  ought  to  give  the  defendant  a  copy  of  the  convic- 
tion, if  he  demand  it. 

The  form  of  conviction  given  by  statute,  must  be  strictly  ad- 
hered to.  Where  a  conviction  was  drawn  up  in  another  form, 
and  a  warrant  granted  on  it,  it  was  held  illegal,  and  that  an  ac- 
tion of  trespass  lay  against  the  Justice,  and  those  acting  under  it. 

The  judgment  should  be  stated  in  the  present  tense  ;  but  the 
previous  parts  of  the  record  of  conviction  may  be  in  the  past 
time  ;  although  it  has  been  held  that  the  Avhole  of  the  record 
should  be  in  the  present  tense,  which  is,  perhaps,  the  safest  ride 
to  pursue. 

If  the  convicting  magistrate  give  a  proper  date  to  the  time  of 
conviction  upon  the  face  of  it,  and  afterwards  add  an  impossi- 
ble date  when  he  sets  his  hand  to  the  conviction,  (being  before 
the  oflence  committed,)  the  latter  may  be  rejected  as  surplusage. 
It  is  enough  that  the  conviction  sets  forth  that  the  witness  was 
examined  on  oath,  without  stating  that  the  magistrate  had  au- 
thority to  administer  the  oath.  Where  a  penalty  is  to  be  sued 
for,  before  Justices  of  the  Peace,  within  a  certain  time  after  the 
offence  committed,  upon  conviction  for  such  offence,  it  ought  to 
appear  on  the  face  of  the  evidence  stated  in  such  conviction,, 
that  the  prosecution  was  in  time ;  and  if  the  .witness  bo  only 
stated  to  have  mentioned  the  month  in  which  the  offence  was 
committed,  omitting  the  year,  and  there  be  no  word  of  reference 
to  connect  it  with  the  true  date,  the  omission  cannot  be  supplied, 
cither  by  reference  to  the  oflence  charged  in  the  information,  or 
by  presumption  arising  from  the  Justice  having  convicted  the 
defendant. 

In  committing  a  vagrant,  if  the  Justice  finds  that  the  vagrant 
is  not  a  notorious  offender,  and  is  a  proper  subject  for  relief,  he 
must  commit  him  by  warrant,  under  his  hand,  to  the  county 
poor  house,  if  there  be  one,  and  if  not,  to  the  alms  house  or 
poor  house  of  the  town  or  city,  there  to  be  kept  at  hard  labor, 
for  a  term  not  exceeding  six  months.  If  the  offender  be  an  im- 
proper person  to  be  sent  to  the  poor  house,  lie  nuist  be  commit- 
ted to  tin;  hridtnvc.'ll  or  house  of  correction,  if  there  be  one,  and 
if  not,  ir)  the.  conuiion  jail  of  the  county,  for  a  term  not  exceed 
ing  sixty  days,  and  to  be  kept,  if  the  Justice  think  proper  so  to 
direct,  upon  bread  and  water  only,  for  a  time  not  exceeding  one 


INTERNAL  POLICE  OF  THE  STATE.  305 

half  the  time  for  which  he  shall  be  committed.     (1  R.  S.  S02. 
sec.  3.) 

RECORD    OP    CONVICTION    OF    A    VAGRANT. 

Chenango  County^  ss. — Be  it  remembered,  that  Peter  Pra^'-. 
is  now,  at  this  day,  brought  before  me,  the  imderiiamed  Jus- 
tice of  the  Peace  of  the  town  of  Norwich,  in  said  county,  at  Nor- 
wich, aforesaid,  upon  the  charge  and  accusation  that  said  Peter 
Pray  was  found  in  said  town  an  idle  person,  not  having  visible 
means  to  maintain  himself,  and  living  without  employment,  \or 
as  the  case  may  6e,]  and  a  vagrant,  within  the  intent  and  mean- 
ing of  the  provisions  of  title  second,  of  chapter  twentieth,  of  the 
iirst  part  of  the  Revised  Statutes ;  and.  I,  the  said  .Justice,  being 
satisfied,  upon  due  and  personal  examination  of  said  Peter  Pray, 
and  by  his  confession  now  before  me,  had  and  made,  [or  "  sat- 
isfied upon  due  and  jjersonal  exatnination  of  said  Peter  Pray, 
and  upon  competent  testimony  before  me  had  and  ^ive/i,"]  that 
said  charge  and  accusation,  are  in  all  respects  true — the  said 
Peter  Pray  is  therefore  duly  convicted  before  me  of  being  a  va- 
grant, withhi  the  true  intent  and  meaning  of  said  statute.  And 
it  appearing  to  me,  that  said  Peter  Pray  is  not  a  notorious  ofien- 
der,  and  that  he  is  a  proper  object  for  relief,  I  adjudge  and  deter- 
mine that  said  Peter  Pray  be  committed  to  the  county  poor  house 
of  said  county,  [or  the  alms  house  or  poor  house  of  the  town,]  for 
the  term  of  forty  days,  there  to  be  kept  at  hard  labor,  [or,  '•  it  ap- 
pearing to  me  that  said  Peter  Pray  is  an  itnproper  person  to 
he  sent  to  the  poor  house,  I  do,  therefore,  adjudge  and  deter- 
mine, that  said  Peter  Pray  be  committed  to  the  county  jail  of 
said  county — or  the  bridewell  or  house  of  correction — for  the 
term  of  thirty  days,  and  {jf  the  Justice  so  determine,)  to  be  kept 
during  the  first  ten  days  of  said  term,  on  bread  and  ivater 
only"]  In  witness  whereof,  I  have  hereunto  set  my  hand,  this 
1st  day  of  July,  1849. 

James  Jackson.  Justice. 

FORM    OF    COMMITMENT. 

Chenango  County,  ss. 

To  any  Constable  of  said  county,  Greeting : 
Whereas,  Peter  Pray  has  been  this  day  duly  convicted  before 
me,  the  undernamed  Justice  of  the  Peace,  of  tlie  town  of  Nor- 

20 


306  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

wich,  in  said  county,  of  being  a  vagrant ;  and  inasmuch  as  it 
appeared  to  me  tliat  said  Peter  Pray  is  not  a  notorious  offender, 
and  is  a  proper  subject  of  relief,  [or,  "  that  said  Peter  Pray  is 
an  improper  person  to  be  sent  to  the  poor  hoiise  ;"]  I  did,  upon 
such  conviction,  adjudge  that  said  Peter  Pray  be  committed,  as 
hereinafter  expressed.  You  are,  therefore,  hereby  commanded, 
in  the  name  of  the  people  of  the  state  of  New  York,  to  convey 
the  said  Peter  Pray  to  the  county  poor  hoouse,  [or  alms  house, 
or  toion  poor  house,]  the  keeper  whereof  is  required  to  keep  the 
said  Peter  Pray  therein,  at  hard  labor,  for  the  term  of  forty  days, 
[or,  to  convey  the  said  Peter  Pray  to  the  common  jail  of  said 
county,  the  keeper  whereof  is  required  to  detain  the  said  Peter 
Pray  in  safe  custody  tlierein,  for  the  term  of  thirty  days'' — 
'•'  and  to  he  kept  for  the  first  ten  days  of  said  term,  on  bread  and 
water  only."   Given  under  my  hand,  at  Norwich,  July  1st,  1849. 

James  Jacksox,  Justice. 

The  magistrate  who  commits  the  vagrant,  may  cause  him  to 
be  searched,  for  the  purpose  of  discovering  any  property  he  may 
have  ;  and  if  any  property  be  found,  the  same  may  be  taken  and 
applied  to  the  support  of  such  vagrant  while  in  confinement.  (2 
R.  S.  831,  sec.  33.) 

If  any  child  shall  be  found  begging  for  alms,  or  soliciting 
charity  from  door  to  door,  or  in  any  street,  highway,  or  public 
place,  of  any  city  or  town,  any  Justice  of  the  Peace,  on  com- 
plaint and  proof  thereof,  shall  commit  such  child  to  the  county 
poor  house,  if  there  be  one,  or  to  the  alms  house  or  other  place 
provided  for  the  support  of  the  poor,  there  to  be  detained,  kept, 
employed,  and  instructed,  in  such  useful  ^labor  as  such  child 
shall  be  able  to  perform,  until  discharged  therefrom,  by  the 
county  superintendents  of  the  poor,  or  bound  out  as  an  appren- 
tice by  them,  or  by  the  commissioners  of  the  alms  house,  or  the 
overseers  of  the  poor.     (1  11.  S.  802,  sec.  4.) 

COMMITMENT    OP    A    CHILD    FOUND    BEGGING. 

Chcnanffo  County,  ss. 

To  any  Constable  of  said  county.  Greeting  : 
Whereas,  complaint  has  this  day  been  made,  and  due  proof 
thereof  given  to  me,  one  of  the  Justices  of  the  Peace  of  said 
county,  that  a  child  of  the  name  of  John  Roberts,  has  been  found 


Ix^TERNAL  POLICE  OF  THE  STATE.  397 

in  the  town  of  Norwich,  in  said  county,  begging  for  alms.  You 
are,  therefore,  hereby  commanded,  in  the  name  of  the  people  of 
the  state  of  New  York,  to  convey  the  said  child  to  the  poor 
house  of  said  county,  [or,  "  town,"  or  the  "  alms  house  of  said 
city,"j  the  keeper  whereof  is  required  to  detain,  keep,  employ, 
and  instruct,  said  child,  in  such  useful  labor  as  said  child  shall 
be  able  to  perform,  until  discharged  therefrom  by  the  county 
superintendents  of  the  poor,  or  bound  out  as  an  apprentice  by 
them,  [or,  "  by  the  commissioners  of  such  alms  house,"  or,  "  by 
the  overseers  of  the  poor."] 

Given  under  my  hand,  at  Norwich,  July  1st,  1849. 

James  Jackson,  Justice. 

If  a  person  having  his  face  painted,  discolored,  covered,  or 
concealed,  or  being  otherwise  disguised,  in  a  manner  calculated 
to  prevent  him  from  being  identified,  appear  in  any  road  or 
public  highway,  or  in  any  field,  lot,  wood,  or  enclosure,  he  may 
be  pursued  and  arrested  ;  and  if,  upon  being  brought  before  a 
Justice  of  the  Peace  of  the  same  county  where  he  was  arrested, 
he  do  not  give  a  good  account  of  himself,  he  must  be  deemed 
a  vagrant ;  and,  on  conviction,  must  be  committed  to,  and  im- 
prisoned in,  the  county  jail  of  the  county  where  he  was  found. 
(1  R.  S.  803,  sec.  5.) 

Every  sheriff,  deputy  sheriff,  constable,  marshal  of  a  city,  or 
other  public  peace  officer,  or  other'  citizen,  of  the  county  where 
the  person  or  persons  may  be  found  disguised,  as  above,  can,  of 
his  own  authority.,  and  ivithoiU  process,  arrest,  secure,  and 
convey  before  a  Justice  of  the  Peace  residing  in  the  county 
where  the  arrest  is  made,  any  person  found  having  his  face 
painted,  discolored,  covered  or  concealed,  or  otherwise  disguised, 
to  be  examined  and  proceeded  against  as  a  vagrant.  (1  R.  S. 
803,  sec.  6.) 

It  is  the  duty  of  any  sheriff",  deputy  sheriff,  constable,  mar- 
shal, or  other  peace  officer,  whenever  any  of  them  shall  dis- 
cover any  person  with  his  face  so  painted,  discolored,  covered, 
or  concealed,  or  otherwise  disguised,  immediately  to  arrest, 
secure,  and  convey  such  person  to  a  magistrate,  to  be  proceeded 
with  according  to  law  ;  and  whenever  any  such  officer  shall 
receive  credible  information  of  any  person  having  his  face  so 
painted,  discolored,  covered,  or  concealed,  or  otherwise  disguised, 


308  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

it  is  his  duty  forthwith  to  pursue  such  person,  and  arrest,  secure, 
and  convey  him  to  a  magistrate.     (Id.) 

In  the  execution  of  the  foregoing  duties,  any  sheriff,  deputy 
sheriff,  constable,  marshal,  or  other  peace  oflicer,  is  authorized 
to  command  any  male  inhabitant  of  his  county,  or  as  many  as 
he  shall  think  properj  to  assist  him  in  seizing,  arresting,  confi- 
ning and  conveying  to  a  magistrate,  and  committing  to  the 
common  jail  of  the  county,  every  person  with  his  face  painted, 
discolored,  covered,  or  concealed,  or  otherwise  disguised  ;  and 
any  inhabitant  so  commanded,  may  provide  himself,  or  be  pro- 
vided with,  such  means  and  weapons  as  the  oflicer  giving  such 
command  shall  designate.     (Id.  sec.  7.) 

Every  person  so  commanded,  who  refuses  or  neglects,  without 
lawful  cause,  to  obey  the  command,  will  be  deemed  guilty  of  a 
misdemeanor,  and  be  subject  to  a  fine,  not  exceeding  f  250,  or 
to  imprisonment;  not  exceeding  one  year,  or  to  both.  (1  R.  S. 
804,  sec.  8.) 

Any  magistrate  to  whom  complaint  is  made  that  any  person 
has  appeared  in  the  public  highway,  or  in  any  lot,  field,  woods, 
or  enclosure,  with  his  face  painted,  discolored,  covered,  or  con- 
cealed, or  otherwise  disguised,  may  in  his  discretion,  by  warrant 
under  his  hand,  depute  and  empower  any  elector  of  the  county 
to  arrest,  seize,  and  confine,  and  bring  sncli  person  before  such 
magistrate,  to  answer  such  complaint.  And  in  any  such  war- 
rant, or  in  any  other  warrant  or  process  against  any  person 
charged  with  having  his  face  painted,  discolored,  covered,  or 
concealed,  or  olherv/iso  disguised,  whose  name  is  not  known,  it 
will  be  sufficient  to  describe  the  ofiender  by  some  fictitious 
name.     (Id,  sec.  9.) 

The  statute  authorizes  other  oflicers  besides  Justices  of  the 
Peace,  to  execute  the  powers  and  duties  in  relation  to  the  fore- 
going offence.     (Vide  1  R.  S.  803,  and  2  R.  S.  793.) 

3.   Of  Disorderly  Persons. 

The  statute  defines  particularly  who  are  to  be  deemed  disor- 
derly persons,  to  wit : — persons  who  threaten  to  run  away  and 
leave  their  wives  and  children  a  burthen  on  the  pid)Hc  ;  persons 
pretending  to  tell  fortunes,  or  wlicrc  lost  or  stolen  goods  may  be 
foimd  ;  common  prostitutes,  keepers  of  bawdy  houses,  or  houses 
fi;r   the   resort   of   prostitutes,  driinK'ards,  tipplers,   gamesters  ; 


INTERNAL  POLICE  OF  THE  STATE.  3,39 

persons  who  have  no  visible  profession  or  calhiig  to  maintain 
themselves  by,  bat  who  do,  for  the  most  part  support  them- 
selves by  gaming  ;  jugglers,  common  showmen  and  mounte- 
banks, who  exhibit  or  perform  for  profit  any  puppet  show,  wire 
or  rope  dance,  or  other  idle  shows,  acts  or  feats  ;  persons  who 
keep  in  any  public  highway  or  place,  or  in  any  place  where 
liquors  are  sold,  any  faro  table,  wheel  of  fortune,  thimbles,  or 
other  tables,  box,  machine,  or  device,  exhibiting  tricks,  or  ga- 
ming therewith ;  persons  who  play  in  public  streets  or  high- 
ways with  cards,  dice,  or  any  other  instrument  or  device  for 
gaming.     (1  R.  S.  819,  sec.  1.) 

The  first  proceeding  in  the  prosecution  of  a  disorderly  person, 
is  a  complaint,  on  oath,  to  a  Justice  of  the  Peace.     (Id.  sec.  2.) 

FORM    OP    COMPLAINT. 

Tioga  County,  ss. — John  Smith  of  Owego,  in  said  county, 
being  duly  sworn,  makes  oath  and  complains,  before  Thomas 
Trueman,  one  of  the  Justices  of  the  Peace  of  said  town,  that 
on  the  9th  day  of  June  instant,  he  heard  Henry  Brown  of  said 
tOAvn,  threaten  to  run  away  and  leave  his  wife  and  children  a 
burthen  on  the  public ;  \or  other  facts,  as  the  case  may  he,  con- 
stituting the  person  disorderly  lolthin  the  description  in  the 
statute.] 

John  Smith. 
Subscribed  and  sworn  before  me, 
June  10th,  1849. 

Thomas  Trueman.  Justice. 

Upon  the  complaint,  the  Justice  is  required  to  issue  liis  war- 
rant to  apprehend  the  offender,  and  bring  him  before  him  for 
examination.     (Id.) 

FORM    OF    warrant. 

Tioga  Coimty,  ss : 

To  any  Constable  of  said  County,  Greeting  : 

Whereas,  John  Smith  of  Owego,  in  said  county,  has  this  day 
made  complaint,  on  oath,  before  me,  the  undernamed  Justice  of 
the  Peace  of  said  county,  against  Henry  Brown,  in  which  com- 


310  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

plaint  the  said  John  Smith  alleges,  that,  <fcc. — [here  set  forth 
the  complaint.\  Yon  are,  therefore,  hereby  commanded,  in  the 
name  of  the  people  of  the  state  of  New  York,  forthwith  to  ap- 
prehend the  said  Henry  Brown,  and  bring  him  before  me,  the 
said  Justice,  at  my  office  in  Owego  aforesaid,  to  be  dealt  with 
in  the  premises,  as  by  law  required. 

Given  under  my  hand  at  Owego,  June  10th,  1849. 

Thomas  Trueman,  Justice. 

When  the  person  accused  is  brought  before  the  Justice,  if  it 
appears,  either  by  the  confession  of  the  offender,  or  by  compe- 
tent testimony,  that  he  is  a  disorderly  person,  the  Justice  may 
require  him  to  find  sureties  for  his  good  behavior,  for  the  space 
of  one  year.  (1  R.  S.  820,  sec.  2.)  The  statute  contemplates 
that  the  security  should  be  by  recognizance. 


FORM    OF    RECOGNIZANCE. 

Tioga  County,  ss. — We,  Henry  Brown,  John  Stow,  and 
Samuel  Peters,  of  Owego  in  said  county,  acknowledge  our- 
selves to  be  indebted  to  the  people  of  the  state  of  New  York  in 
the  manner  following  :  the  said  Henry  Brown  in  the  sum  of 
one  lumdred  dollars,  and  the  said  John  Stow  and  Samuel 
Peters,  each  in  the  sum  of  fifty  dollars,  to  be  respectively  made 
and  levied  of  our  several  goods  and  chattels,  lands  and  tene- 
ments, to  the  use  of  said  people. 

The  condition  of  this  recognizance  is  such,  that  whereas 
John  Smith  made  complaint,  on  oath,  before  the  undernamed 
Thomas  Trueman,  against  the  said  Henry  Brown,  in  Avhich 
complaint  the  said  John  Smith  alleged,  that — [set  forth  the 
complaint.]  And  whereas  the  said  Justice  this  day  caused  the 
said  Henry  Brown  to  be  brought  before  him,  and  examined 
touching  the  offence  in  said  complaint  alleged  ;  and  it  appear- 
ing to  said  Justice,  upon  said  examination,  and  by  the  con- 
fession of  the  said  Henry  Brown,  [or,  by  "  competent  testimo?i7/"] 
that  said  Henry  Brown  is  guilty  of  the  offence  alleged  in  said 
complaint,  and  is  a  disorderly  person  :  Now,  therefore,  if  the 
said  Ifcnry  Brown  shall  be,  and  continue,  of  good  behavior  to- 
wards the  j)eopk;  of  the  slate  of  New  York,  for  the  space  of 


INTERNAL  POLICE  OF  THE  STATE.  31 X 

one  year,  from  and  after  this  day,  then  this  recognizance  to  be 

void,  otherwise  of  force. 

Henry  Brown, 
John  Stow, 
Samuel  Peters. 
Taken,  subscribed,  and  acknowledged, 
June  10th,  1849,  before  me, 

Thomas  Trueman,  Justice. 

If  any  breach  of  such  recognizance  for  good  behavior  hap- 
pen, such  recognizance  shall  be  prosecuted,  at  the  instance  of 
any  overseer  of  the  poor,  county  superintendent  of  the  poor,  or 
Justice  of  the  Peace  ;  and  the  penalty,  when  collected,  shall  be 
paid  into  the  county  treasury,  for  the  benefit  of  the  poor  of  such 
county.     (1  U.  S.  820,  sec.  4.) 

Upon  a  recovery  being  had  upon  any  such  recognizance,  the 
court  before  which  it  shall  be  had,  may,  in  its  discretion,  either 
require  new  sureties  for  good  behavior  to  be  given,  or  may 
commit  the  offender  to  the  common  jail  of  the  city  or  county, 
for  any  term,  not  exceeding  six  calendar  months.     (Id.  sec.  5.) 

In  default  of  the  offenders  finding  sureties,  the  Justice  must 
make  up,  sign,  and  file,  in  the  county  clerk's  office,  a  record  of 
the  conviction  of  such  offender,  as  a  disorderly  person,  specify- 
ing generally,  the  nature  and  circumstances  of  the  offence;  and 
must,  by  warrant,  commit  the  offender  to  the  common  jail  of 
the  city  or  county,  there  to  remain  until  such  sureties  be  found, 
or  such  offender  be  discharged  according  to  law.     (Id.  sec.  2.) 

FORM    OF    RECORD. 

Tioga  Cmmty,  ss. — Be  it  remembered,  that  whereas,  John 
Smith  made  complaint,  on  oath,  before  me,  the  undernamed 
Justice  of  the  Peace  of  said  county,  against  Henry  Brown,  in 
which  complaint,  the  said  John  Smith  alleges,  that, — [^e^  forth 
the  cojnjjlaint^^ — and  whereas,  I,  the  said  Justice,  did  cause  the 
said  Henry  Brown  to  be  brought  before  me  this  day,  at  Owego, 
county  aforesaid,  and  examined  touching  the  offence  in  said 
complaint  alleged  ;  and  it  appearing  to  me,  the  said  Justice, 
upon  such  examination,  and  by  the  confession  of  said  Henry 
Brown,  before  me  made,  [or,  '•  hy  competent  testimony,''^]  that 
said  Henry  Brown  is  guilty  of  the  offence  in  said  complaint  al- 
leged ;  the  said  Henry  Brown  is,  therefore,  convicted  before  me, 
the  said  Justice,  of  being  a  disorderly  person.     And  inasmuch 


312  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

as  the  said  "Henry  Brown,  now  before  me,  has  made  default  in 
finding  sureties  for  his  good  behavior,  as  by  me  required,  that  is 
to  say,  two  sufficient  sureties  to  be  recognized  with  the  said 
Henry  Brown,  each  in  the  sum  of  fifty  dollars,  and  the  said 
Henry  Brown  in  the  sum  of  one  hundred  dollars.  I  do,  there- 
fore, in  pursuance  of  Ihe  statute  in  such  case  made  and  provi- 
ded, make  this  my  record  of  the  conviction  of  the  said  Henry 
Brown,  of  the  ofience  aforesaid,  at  Owego  aforesaid,  this  10th 
day  of  Jnne,  1849. 

Thomas  Trueman,  Justice. 

FORM    of    warrant    TO    COMMIT. 

Tioga  County,  ss. 

To  any  Constable  of  said  County,  Greeting  : 
Whereas,  Henry  Brown  has  this  day  been  duly  convicted  be- 
fore me,  the  undernamed  Justice  of  the  Peace  of  said  county,  of 
being  a  disorderly  person  ;  and,  upon  such  conviction,  the  said 
Henry  Brown  was  by  me  required  to  find  two  sufficient  sure- 
ties, to  be  recognized  with  the  said  Brown,  the  sureties  each  in 
the  sum  of  fifty  dollars,  and  the  said  Henry  Brown  in  the  sum 
of  one  hundred  dollars,  for  his  good  behavior,  for  the  space  of 
one  year,  from  the  time  of  his  conviction,  as  aforesaid  ;  and  in- 
asmuch as  the  said  Henry  Brown  has  made  default  in  finding 
such  sureties,  you  are,  therefore,  hereby  commanded,  in  the 
name  of  the  people  of  the  State  of  New  York,  forthwith  to 
convey  the  said  Henry  Brown  to  the  common  jail  of  said  coun- 
ty, the  keeper  whereof  is  required  to  detain  the  said  Henry 
Brown  in  custody  in  said  jail,  until  he  shall  find  such  sureties, 
or  shall  be  thence  discharged,  according  to  law.  Given  under 
my  hand,  June  10th,  1849. 

Thomas  Tuukman,  Justice. 

It  will  be  seen,  that  in  the  foregoing  forms,  the  sureties  requi- 
red arc  particularly  stated.  The  reason  is,  that  if  the  offender 
is  committed,  he  may  be  discharged  by  ani/  two  Justices  of  the 
Peace,  upon  giving  such  snretics  as  were  originally  required. 
(1  R.  S.  820,  sec.  G.)  Such  statement  is  therefore  necessary  to 
guide  the  other  Justices,  when  the  committing  Justice  is  not  one 
of  them. 


INTERNAL  POLICE  OF  THE  STATE.  313 

FORM    OP    DISCHARGE. 

Tioga  County,  ss. 
To  the  Keeper  of  the  Common  Jail  of  said  County,  Greeting  : 

Whereas,  Henry  Brown  was  lately  committed  to  your  cus- 
tody, in  said  jail,  by  the  warrant  of  Thomas  Trueman,  Justice, 
upon  the  conviction  of  the  said  Henry  Brown,  before  the  said 
Justice,  of  being  a  disorderly  person,  and  upon  the  failure  of  the 
said  Henry  Brown  to  procure  sureties  for  his  good  behavior,  as 
by  said  Justice  required.  And  whereas,  the  said  Henry  Brown 
has  given  such  sureties  as  were  originally  required  by  said 
Thomas  Trueman,  Justice,  from  him — Now,  therefore,  wo,  be- 
ing two  of  the  Justices  of  the  Peace  of  the  county,  do  require 
you  forthwith  to  discharge  the  said  Henry  Brown  out  of  your 
custody,  in  said  jail,  under  his  commitment  aforesaid.  Given 
under  our  hands  at  Owego,  June  10th,  1849. 

Robert  Strong,       }  -r     ,■ 

I  Justices. 
James  Myers,  ) 

4.   Of  the  iSupport  of  Bastards. 

A  bastard  is  defined,  by  statute,  to  be  a  child  begotten  and 
born  :    (I  R.  S.  822,  sec.  1.) 

1.  Out  of  lawful  matrimony. 

2.  While  the  husband  of  its  mother  continued  absent  out  of 
this  state,  for  one  whole  year  previous  to  such  birth,  separate 
from  its  mother,  and  leaving  her,  during  that  time,  continuing 
and  residing  in  this  state. 

3.  During  the  separation  of  its  mother  from  her  husband, 
pursuant  to  a  decree  of  any  court  of  competent  authority. 

The  reputed  father,  and  the  mother  of  a  bastard  child,  are 
liable  for  its  support;  and  in  case  of  their  default,  or  inability,  it 
must  be  supported  by  the  town  or  county  where  it  is  born. 
The  mother  of  a  bastard  child,  if  unable  to  support  herself  dur- 
ing her  confinement  and  recovery,  or  subsequent  thereto,  is,  as 
well  as  her  child,  to  be  provided  for,  in  all  respects,  as  a  pauper. 
The  old  system  of  compulsory  removal  of  paupers  is  wholly 
abolished  ;  still,  however,  questions  of  settlement,  between  dif- 
ferent towns  in  the  same  county,  may  arise,  which  are  to  be 
determined  by  the  superintendents  of  the  poor.  The  rules,  as  to 
the  legal  settlement,  for  the  purpose  of  maintenance,  of  a  mother 


314  DUTIES  OF  JUSTICES  OF   THE  PEACE. 

and  her  bastard  child,  are  as  follows  :     (I  R.  S.  822,  sees.  3  and 
4  ;  sec.  53.) 

1.  If  the  mother  have  no  legal  settlement  in  the  county  where 
the  child  is  born,  they  are  to  be  supported  at  the  expense  of 
such  county. 

2.  They  must  be  supported  at  the  expense  of  the  county 
where  the  child  is  born,  if  such  county  be  one  of  those  where 
the  distinction  between  town  and  county  poor  is  abolished.  If, 
however,  the  mother  has  been  removed,  or  clandestinely  brought, 
or  enticed  to  remove,  from  any  other  part  of  the  state,  to  avoid 
the  charge  of  their  support,  the  overseers  of  the  poor,  or  super- 
intendents of  the  poor,  have  the  same  remedies  therefor  as  in 
the  case  of  paupers. 

3.  In  counties  where  the  respective  towns  support  their  own 
poor,  they  are  to  be  supported  at  the  expense  of  the  town  v/here 
the  ciiild  is  born,  if  the  mother  have  a  legal  settlement  therein. 

4.  If  the  mother  have  a  settlement  in  some  other  town,  than 
that  in  which  the  child  is  born,  of  the  same  county,  and  which 
town  is  required  to  support  its  own  poor,  they  are  to  be  support- 
ed at  the  expense  of  such  other  town. 

In  respect  to  the  latter  rule,  it  is  to  be  observed,  that  although 
the  mother  and  child  are  to  be  provided  for  at  the  expense  of 
the  town  where  the  mother  is  legally  settled,  yet  they  are  to  be 
suppoi'ted  in  the  tovvn  where  the  child  is  born,  unless  they  are 
taken  voluntarily  to  the  town  chargeable.  The  proceedings  to 
compel  the  town  chargeable,  to  indemnify  the  town  where  they 
are  supported  are  to  be  conducted  by  the  overseers  of  the  poor. 
(Id.  sees.  54,  58,  and  63.) 

Tlie  preceding  summary  of  statutory  provisions,  is  deemed 
necessary  as  a  guide  to  Justices  of  the  Peace  in  their  official  du- 
ties, under  the  statute. 

In  counties  where  the  poor  are  all  a  county  charge,  the  super- 
intendents of  the  poor  niake  provision  for  the  support  of  a  bas- 
tard child  and  its  mother.  In  counties  which  have  a  county 
poor  house,  and  the  jioor  are  chargeable  to  the  respective  towns, 
the  overseers  of  tiie  poor  may,  with  the  approbation  of  two  of 
the  superintendents,  and  where  the  situation  of  the  mother  will 
permit,  remove  the  mother  and  child  to  tlic  poor  house.  In  the 
last  mi.-ntiou'd  C(tuutics,  where  the  situation  of  the  mother  will 
not  admit  of  the  removal  to  the  poor  house,  (and  in  those  cases 
only,  where  no  moneys  have  been  received  from  the  putative 


liNTERNAL  POLICE  OF  THE  STATE.  315 

father,  or  from  the  mother,  to  repay  the  expenses  of  tlieh-  sup- 
port,) the  overseers  of  the  poor  may  apply  to  a  Justice  of  the 
Peace  for  an  order  for  the  temporary  rehef  of  the  bastard,  and 
the  sustenance  of  the  mother,  during  her  confinement  and  reco- 
very therefrom,  as  in  case  of  otlier  paupers.  (I  R.  S.  833,  834, 
sees.  65,  66.) 

In  the  counties  where  there  is  no  poor  house,  or  other  place 
provided  for  the  reception  of  the  poor,  and  application  be  made 
for  the  relief  of  a  bastard  and  its  mother,  and  no  moneys  shall 
have  been  received  from  the  putative  father,  or  from  the  mother, 
for  their  support,  the  overseers  of  the  poor,  with  the  assistance 
of  some  Justice  of  the  Peace  of  the  town,  must  inquire  into  the 
circumstances  of  the  case,  and  make  an  order  for  such  weekly 
allowance,  or  otherwise,  as  the  Justice  and  one  of  the  overseers 
shall  deem  to  be  required.     (Id.  sec.  65.) 

The  most  important  branch  of  this  subject  relates  to  the  mode 
of  compelling  the  putative  father,  and  the  mother,  when  she 
has  property  in  her  own  right,  to  indemnify  the  public. 

If  a  woman  be  delivered  of  a  bastard  child,  which  is  charge- 
able, or  likely  to  become  chargeable,  to  any  county,  city,  or 
town  ;  or  shall  be  pregnant  with  a  child  likely  to  be  born  a 
bastard,  and  to  become  so  chargeable,  a  superintendent  or  over- 
seer of  the  poor,  where  the  woman  shall  be,  is  required  to  apply 
to  a  Justice  of  the  Peace  of  the  county,  to  make  inquiry  into 
the  facts  and  circumstances  of  the  case.     (I  R.  S.  823,  sec.  5.) 

The  first  proceeding  before  the  Justice,  is  the  examination  of 
the  woman,  and  the  hearing  of  other  testimony  which  may  be 
offered  to  ascertain  the  putative  father.  For  the  purpose  of 
such  examination,  the  woman  usually  appears  voluntarily 
before  the  Justice.  The  examination  must  be  on  oath  ;  and. 
although  the  statute  does  not  require  it,  there  seems  to  be  great 
propriety  in  reducing  it  to  writing.     (Id.  sec.  6.) 

FORM    OF    EXAMINATION    BEFORE    BIRTH. 

CJienango  County,  ss. — The  voluntary  examination  of  A. 
B.  of  Norwich,  in  said  county ;  who,  being  duly  sworn,  before 
the  undernamed  Justice  of  the  Peace  of  said  county,  says,  that 
she  is  now  with  child,  and  that  the  child  of  which  she  is  preg- 
nant, is  likely  to  be  born  a  bastard,  and  to  be  become  chargeable 


316  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

to  said  town,  [or  "  to  said  county  ;■']  and  that  0.  D.,  of  Norwich 
aforesaid,  is  tlie  father  of  said  child. 

A.  B. 
Subscribed  and  sworn,  June  1st,  1849,  before  me, 
James  Jackson,  Justice. 

EXAMINATION    AFTER    BIRTH. 

Chenango  County,  ss. — The  examination  of  A.  B.  of  Nor- 
wich, in  said  county  ;  who,  being  duly  sworn,  before  the  under- 
named Justice  of  the  Peace  of  said  county,  says,  that  on  the 
25th  day  of  March  last,  she  was  delivered  of  a  bastard  child, 
which  is  chargeable,  [or  "  likely  to  become  chargeable,"]  to  said 
town,  [or  "  county ;"]  and  that  C.  D.  of  Norwich  aforesaid,  is 
the  father  of  said  bastard  child.  A.  B. 

Subscribed  and  sworn,  June  1st,  1849,  before  me, 
James  Jackson,  Justice. 

The  next  proceeding,  is  the  issuing  of  a  warrant,  to  appre- 
hend the  reputed  father,  and  bring  him  before  the  Justice.  (1 
R.  S.  823,  sec.  6.) 

This  warrant  can  be  issued  only  upon  the  application  of  one 
of  the  overseers,  or  a  superintendent  of  the  poor.     (10  J.  R.  93.) 

FORM    OF    warrant. 

Chenango  County,  ss  : 

To  any  Constable  of  said  County,  Greeting  : 

Whereas,  A.  B.  of  Norwich  in  said  county,  upon  her  exami- 
nation on  oath,  before  me,  the  undernamed  Justice  of  the  Peace 
of  said  county,  this  day  had,  did  declare  that,  (fcc. — \as  hi  the 
examijiation] — and  whereas  John  Long,  one  of  the  overseers  of 
the  poor  of  said  town — [or  one  of  the  superintendents,  as  the 
case  may  be] — in  order  to  indemnify  the  said  town,  [or  "  coun- 
ty,"] in  tlic  })remises,  hath  applied  to  me  to  inquire  into  the 
facts  and  circumstances  of  tiic  case,  and  to  issue  my  warrant 
to  apprehend  the  said  C.  1).,  (Sec.  :  You  are,  therefore,  hereby 
commanded,  in  tiio  name  of  the  people  of  the  state  of  New 
York,  (orlliwiili  to  apprehend  the  said  C.  1).  and  him  bring 
before  me  at  my  ollice  in  Norwich  aforesaid,  for  the  purpose  of 


INTERNAL  POLICE  OF  THE  STATE.  3^7 

having  an  adjudication  respecting  the  fihation  of  such  bastard 
child,  [or  "  of  such  child  likely  10  be  born  a  bastard."] 

Given  under  my  hand  at  Norwich  aforesaid,  June  1st,  1849. 

James  Jackson,  Justice. 


If  the  Justice  who  issued  the  warrant,  shall  have  died,  vaca- 
ted his  office,  or  be  absent  on  the  return  of  the  warrant,  the 
constable  must  carry  the  putative  father  before  some  other 
Justice  of  the  same  town,  who,  in  such  case,  will  have  the  same 
authority  to  proceed  in  the  case,  as  the  Justice  who  issued  the 
warrant.     (10  J.  R.  43.) 

When  the  person  charged  as  the  reputed  father,  is  brought 
before  the  Justice,  such  Justice  must  immediately  call  to  his 
aid  some  other  Justice  of  the  same  county ;  and  the  two  Jus- 
tices must  then  proceed,  without  unnecessary  delay,  to  make 
examination  of  the  matter,  and  to  make  an  order  of  filiation  and 
maintenance.     (1  R.  S.  824,  sec.  11.) 

Either  of  the  Justices  is  required  to  issue  subpoenas  to  compel 
the  attendance  of  v/itnesses,  on  the  application  of  either  the 
person  charged,  or  the  person  appearing  in  behalf  of  the  public  ; 
and  the  witnesses  may  be  compelled  to  appear  and  testify  as  in 
civil  cases. 

FORM    OF    SUBPCENA. 

Chenango  Counti/,  ss  : 

To  John  Doe,  Richard  Roe,  &c..  Greeting : 

You  are  hereby  commanded,  m  the  name  of  the  people  of 
the  state  of  New  York,  personally  to  aj^pear  before  David  Long 
and  the  undernamed  James  Jackson,  two  of  the  Justices  of  the 
Peace  of  said  county,  forthwith  [o)'  at  the  ti7ne  fixed  upon]  at 
the  office  of  the  said  Jackson,  in  Norwich  in  said  county,  to 
testify  touching  the  father  of  a  bastard  child,  wherewith  A.  B. 
alleges  she  is  now  pregnant,  [or  "  which  was  lately  born  of  A. 
B."]  and  any  other  knowledge  you  may  have  touching  the 
matter  then  and  there  to  be  examined  into,  before  the  said  Jus- 
tices. 

Given  under  my  hand  at  Norwich,  June  2d,  1849. 

James  Jackson,  Justice. 

If  the  Justices  when  convened,  are  not  prepared  to  proceed, 


318  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

or  the  person  charged,  require  delay,  and  assign  sufficient 
reason  therefor,  they  may  adjourn  the  examination,  for  a  time 
not  exceeding  six  weeks.  If  the  adjournment  is  requested  by 
the  person  charged,  he  may  give  a  bond  with  sureties,  for  his 
appearance  on  the  adjourned  day,  in  such  a  penalty  as  shall  be 
deemed  a  full  indemnity  for  the  expense  of  supporting  the 
bastard  and  its  mother.     (1  R.  S.  824,  sees.  12  and  16.) 

FORM    OF    BOND. 

Know  all  men  by  these  presents,  that  we,  C.  D.  and  E.  F.  of 
Norwich,  in  the  county  of  Chenango,  are  held  and  firmly  bound 
imto  the  people  of  the  state  of  New  York,  in  the  sum  of  five 
hundred  dollars,  for  the  payment  whereof  to  the  said  people, 
we  bind  ourselves,  our  heirs,  executors,  and  administrators, 
jointly  and  severally,  firmly  by  these  presents.  Sealed  with 
our  seals,  and  dated  this  2d  day  of  June,  1849. 

The  condition  of  this  obligation  is  such,  that  whereas  the 
undernamed  C  D.  has  been  this  day  brought  before  James 
Jackson  and  David  Long,  two  of  the  Justices  of  the  Peace  of 
the  said  county,  charged  upon  the  oath  of  A.  B.  of  Norwich 
aforesaid,  as  the  reputed  father  of  a  bastard  child,  with  which 
the  said  A.  B.  alleges  she  is  pregnant — [or  "of  a  bastard  child 
lately  born  of  said  A.  B.J— the  said  Justices  having  associated 
pursuant  to  statute,  to  examine  the  matter,  and  adjudicate  re- 
specting the  filiation  and  maintenance  of  such  bastard  child — 
[or  "  child  likely  to  be  born  a  bastard."]  And  whereas  at  the 
request  of  C.  D..  and  for  sufiicient  reason  given,  the  said  Jus- 
tices have  determined  to  adjourn  the  said  examination  and  ad- 
judication, upon  the  execution  of  this  bond,  until  the  20th  of 
June  instant,  at  two  o'clock  in  the  afternoon,  at  the  office  of  the 
said  James  Jackson,  in  Norwich  aforesaid  :  Now,  therefore,  if 
the  said  C.  D.  shall  personally  appear  before  the  said  Justices, 
at  the  time  and  place  last  aforesaid,  and  not  depart  therefrom 
without  leave  of  said  Justices,  then  this  obligation  to  be  void  ; 
otherwise  of  force. 


Sealed  and  (l<live'r('d  in  presence  of,  and 

approved  by  ns, 

Jamks  Jackson,  } 

IX  r  \  Justices. 

Uavid  Long,       \ 


G.  D.     [l.  s.] 
E.F.     [l.s.] 


INTERNAL  POLICE  OF  THE  STATE.  319 

Upon  the  examination  and  hearing  before  the  two  JusticcSj 
the  mother  of  the  bastard,  or  woman  so  pregnant,  must  be  again 
examined  on  oath,  in  tlie  presence  of  the  person  charged,  touch- 
ing the  father  of  such  child,  and  they  must  hear  any  proofs  that 
maybe  offered  in  relation  thereto.     (1  R,  S.  824,  sec.  11.) 

If  they  determine  that  the  person  charged  is  not  the  father  of 
the  bastard  or  child  likely  to  be  born  a  bastard,  they  must  forth- 
with discharge  him.     (Id.  sec.  13.) 

If  they  determine  that  he  is  such  father,  they  must  then  make 
an  order  of  filiation,  specifying  therein,  the  sum  to  be  paid  weekly 
or  otherwise,  by  such  putative  father,  for  the  support  of  the  bas- 
tard, or  child  likely  to  be  born  a  bastard.  If  the  mother  be  in 
indigent  circumstances,  they  must  determine  the  sum  to  be  paid 
by  the  putative  father,  for  the  sustenance  of  the  mother  during 
her  confinement  and  recovery  therefrom.  They  must,  also,  cer- 
tify the  reasonable  costs  of  apprehending  and  securing  the  father, 
and  of  the  order  of  filiation.  Their  proceedings  must  be  re- 
duced to  writing,  and  subscribed  by  them.     (Id.) 

The  order  may  be  so  drawn  as  to  comprise  all  the  proceedings 
of  the  two  Justices,  which  they  are  required  to  reduce  to  wri- 
ting, and  this  is  probably  the  better  course. 

FORM    OF    THE    ORDER. 

Chenango  County,  ss. — Whereas,  we,  the  undernamed,  being 
two  of  the  Justices  of  the  Peace  of  said  county,  have  this  day 
associated;  at  Norwich,  in  said  county,  upon  the  application  of 
the  overseers  of  the  poor  of  said  town,  [or  superintendents,]  for 
the  purpose  of  making  examination  and  determination,  touching 
a  certain  bastard  child,  lately  born  in  said  town,  of  the  body  of  A. 
B.,  [or,  '•  a  certain  child  wherewith  A.  B.  was  said  to  be  pregnant, 
and  that  said  child,  when  born,  would  be  a  bastard,"]  and 
chargeable,  [or  "  likely  to  become  chargeable,"]  to  said  town,  [or 
"  county,"]  and  of  which  child,  C.  D.  was  alleged  to  be  the  father. 
And,  whereas,  we  have  duly  examined  the  said  A.  B.  on  oath, 
in  the  presence  of  the  said  C.  D.,  touching  the  father  of  said 
child,  and  have  also  heard  the  proofs  and  allegations  to  us  of- 
fered in  relation  thereto,  as  well  on  the  part,  and  in  behalf  of  the 
said  overseers,  as  of  the  said  C.  D.,  whereby  it  appears  that  the 
said  A.  B.  was  on  the  25th  day  of  March  last,  delivered  of  a 
bastard  child  in  said  town,  [or,  '•  appears  that  the  said  A.  B.  is 


320  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

now  pregnant  of  a  child,  whicb,  when  horn,  will  be  a  bastard,"] 
and  which  is  chargeable,  [or,  "  likely  to  become  chargeable,"]  to 
said  town,  [or  "  county,"]  and  the  said  C.  D.  is  the  father  of  said 
child.  We,  therefore,  upon  examination  of  the  matter,  as  well 
by  the  oath  and  examination  of  A.  B.,  in  pursuance  of  the  said 
C.  D.  as  otherwise,  do  adjudge  him,  the  said  C.  D.  to  be  the  father 
of  said  bastard  child. 

And  thereupon,  we  order  that  said  C.  D.  pay  to  the  overseers 
of  the  poor  of  said  town,  [or,  "  to  the  said  superintendents  of  the 
poor,"]  for  the  support  of  said  child,  the  weekly  sum  of  one  dol- 
lar, so  long  as  said  child  shall  continue  chargeable  to  said  town, 
[or,  to  said  county."] 

And,  inasmuch  as  it  appeared  to  us,  and  we  find  that  said  A. 
B.  is  in  indigent  circumstances,  we  determine  and  order,  that 
said  C.  D.  pay  to  said  overseers  of  the  poor,  [or,  "  superintend- 
ents,"] for  the  sustenance  of  the  said  A.  B.,  during  her  confine- 
ment and  recovery  therefrom,  the  sum  of  twenty  dollars. 

And  we  do  hereby  certify  the  reasonable  costs  of  apprehend- 
ing and  securing  the  said  father,  and  of  the  order  of  filiation,  at 
the  sum  of  ten  dollars.  Given  under  our  hand  at  Norwich, 
aforesaid,  this  2d  day  of  June,  1849. 

James  Jackson, 
David  Long, 


Justices. 


Upon  notice  of  tlie  order,  [which  will  be  best  done  by  de- 
livering a  copy,]  the  reputed  father  is  required  to  pay  immedi- 
ately the  costs  so  certified  by  the  Justices,  and  also  to  enter  into 
a  bond,  with  good  and  sufficient  sureties,  to  be  approved  by 
them,  to  the  people  of  this  state,  in  such  penal  sum  as  shall  be 
deemed  a  full  indemnity  for  the  expense  of  supporting  the  bas- 
tard and  its  mother,  and  with  one  of  these  two  conditions  :  either 
first  to  pay  the  sums  for  the  support  of  the  child  and  the  suste- 
nance of  the  mother,  as  ordered  by  the  Justices,  or  as  shall 
thereafter  bo  ordered  by  the  Court  of  Sessions,  and  to  indemnify 
the  county,  city,  or  town  where  tiie  bastard  was  born,  or  where 
the  mother  likely  to  liave  the  bastard,  shall  be,  and  every 
other  comity  town,  or  city,  which  niay  have  incurred  any 
expense,  or  may  be  put  to  any  expense,  for  the  support  of 
the  child,  or  its  niolh'M',  during  her  confinement  and  recove- 
ry ;  or  secondly,  to  ai)j)ear  at  the  next  Court  of  Sessions  of  the 


INTERNAL  POLICE  OF  THE  STATE.  33]^ 

Peace  of  the  said  county,  and  not  depart  the  court  without  its 
leave.     (1  R.  S.  825,  sees.  14  and  16.) 

FORM    OF    BOND. 

Know  all  men  by  these  presents,  that  we,  C.  D.,  E.  F.,  and 
G.  H.,  of  Norwich,  in  the  county  of  Chenango,  are  held  and 
firmly  bound  unto  the  people  of  the  State  of  New  York,  in  the 
sum  of  one  thousand  dollars,  for  the  payment  whereof  to  said 
people,  we  bind  ourselves,  our  heirs,  executors,  and  administra- 
tors, jointly  and  severally,  firmly  by  these  presents.  Sealed  with 
our  seals,  and  dated  this  2d  day  of  June,  1849. 

The  condition  of  this  obligation  is  such,  that  whereas,  by  au 
order  this  day  duly  made  and  subscribed  by  the  undernamed 
Justices  of  the  Peace  of  said  county,  it  is  adjudged,  that  the  said 
C.  D.  is  the  reputed  father  of  a  bastard  child,  of  which  A.  B.,  of 
Norwich,  is  pregnant,  and  likely  to  become  ohargeable  [or,  "  of 
a  bastard  child  lately  born,  in  said  town,  of  the  said  A.  B.,  and 
which  is  chargeable,"]  to  said  town,  [or  "  county."]  and  it  is 
thereby  ordered,  that — [here  recite  the  order  for  the  supjiort  of 
the  bastard,  and  sustenance  of  the  mother,  as  in  the  order.] 
Now,  therefore,  if  the  said  C.  D.  shall  pay  the  sums  for  the  sup- 
port of  the  said  bastard  child,  and  the  sustenance  of  its  mother, 
as  the  same  is  ordered  by  said  Justices,  as  aforesaid, — or  as  shall 
at  any  time  hereafter  be  ordered,  by  the  Court  of  Sessions 
of  the  Peace  of  said  county,  and  shall  fully  and  amply  in- 
demnify the  said  town  [or  "  county,]  and  every  other  coun- 
ty, town,  or  city,  which  may  have  incurred  any  expense, 
or  may  be  put  to  any  expense  for  the  support  of  such  child  or 
its  mother,  during  her  confinement  or  recovery  therefrom, 
against  all  such  expenses,  then  this  obligation  to  be  void,  other- 
wise of  force. 

C.  D.  [l.  s.] 
E.  F.  [l.  s.] 
G.  H.  [l.  s.] 
Sealed  and  delivered  in  the  presence  of,  and 

the  penalty  and  sureties  approved,  by  us. 

James  Jackson,  ^ 

T»  T  C  Justices. 

Uavid  Long,       ^ 

If  the  reputed  father  mean  to  appeal  from  the  order  of  the 

21 


322  DUTii:s  OF  justices  of  the  peace. 

Justices,  then  the  condition  of  the  bond  must  be  varied  thus: — 
{To  the  end  of  the  recital  as  in  the  foregoing  form,  then  add,) 

''  Now,  therefore,  if  the  said  C.  D.  shall  personally  appear  at 
the  next  Court  of  Sessions  of  the  Peace,  of  said  county,  and 
shall  not  depart  the  said  court  without  leave,  then,"  &c.,  {con- 
cluding as  in  the  foregoing  form.) 

A  bond,  with  the  latter  condition,  is  to  be  deemed  an  appeal, 
and  no  other,  or  further  notice  of  the  appeal  is  required.  And 
it  must  be  transmitted  by  the  Justices  to  the  next  Court  of 
Sessions,  at  the  opening  thereof.     (1  R.  S.  827,  sec.  24.) 

Upon  the  execution  of  the  bond,  the  putative  father  must  be 
discharged  from  arrest  by  the  Justices.  But  if  he  neglect,  or 
refuse  to  execute  the  bond,  or  to  pay  the  costs  and  charges  cer- 
tified by  the  Justice,  the  Justices,  (or  one  of  them),  are  required 
to  commit  him  to  the  common  jail,  there  to  remain  until  dis- 
charged by  the  Court  of  Sessions,  or  until  he  shall  execute 
such  bond,  in  the  penalty  required  by  the  Justices.     (Sec.  15.) 

FORM    OF    WARRANT    TO    COMMIT. 

Chenango  County,  ss. 

To  any  Constable  of  said  County,  Greeting : 
Whereas,  by  an  order  of  filiation,  this  day  made  by  us,  the 
imdernamed  Justices  of  the  Peace  of  the  said  county  of  Nor- 
wich, in  said  county,  we  did  adjudge  C.  D.  to  be  the  father  of  a 
bastard  child,  begotten  upon  the  body  of  A.  B.  of  said  town, 
and  did  therein  order  that  said  C.  D.  pay,  &c. — \Jiere  set  forth 
the  direction  for  the  sujjport  of  the  child,  the  sustenance  of  the 
mother,  and  the  certificate  of  the  Justices  of  the  amount  of 
costs  and  charges  required  to  be  paid,  as  in  the  order  express- 
ed.]— And  whereas,  upon  the  making  and  subscribing  of  such 
order,  we  did  require  the  said  C.  D.  immediately  to  pay  the  costs 
so  certified,  and  to  enter  into  a  bond  to  the  people  of  this  state, 
in  the  penal  sum  of  one  thousand  dollars,  with  good  and  suffi- 
cient sureties,  to  be  by  us  approved,  with  one  or  other  of  the  con- 
ditions, which,  by  ihc  statute  in  such  case  made  and  provided,  ^s 
prescribed.  And  whereas,  due  notice  of  our  said  order  and  re- 
quirement lias  been  given  to  the  said  C.  D-,  but  he  has  wholly 
neglected  either  to  pay  the  said  costs  and  charges,  or  to  execute 
the  bond  aforesaid, — [or  a  default  in  either  particular,  as  the 


INTERNAL  POLICE  OF  THE  STATE.  323 

case  may  he.\  You  are,  therefore,  hereby  commanded,  in  the 
name  of  the  people  of  the  Slate  of  New  York,  to  convey  the 
said  C.  D.  to  the  common  jail  of  said  county,  the  keeper 
whereof  is  required  to  receive  and  detain  the  said  C.  D.  in  cus- 
tody in  said  jail,  until  he  shall  be  discharged  by  the  Court  of 
Sessions  of  the  Peace  of  said  county,  or  shall  execute  such  bond 
in  the  penalty  required  by  said  Justices,  as  aforesaid.  Given 
under  our  hands,  at  Norwich,  June  2d,  1849. 

James  Jackson, 

David  Long, 


Justices. 


During  the  examination,  and  until  the  person  apprehended 
is  discharged  by  the  Justices,  he  must  remain  in  the  custody  of 
the  constable,  unless  he  gives  the  bond  for  appearance,  as  afore- 
said ;  and  when  committed  to  jail,  can  neither  be  let  to  bail  nor 
upon  the  limits.     (1  R.  S.  825,  sec.  17.) 

When  the  putative  father  is  committed  to  prison,  before  the 
birth  of  the  child,  and  the  woman  so  pregnant  be  married  before 
her  delivery,  or  miscarry,  so  that  the  child  be  not  born  alive,  or 
it  shall  appear  that  she  is  not  pregnant,  the  Justices  by  whom 
he  was  committed,  upon  such  fact  appearing  to  them,  must  im- 
mediately relieve  him  out  of  custody,  by  warrant,  under  their 
hands  and  seals.     (Id.  826,  sec.  30.) 

FORM    OF    WARRANT. 

Chenango  County,  ss. 

To  the  keeper  of  the  common  jail  of  said  county.  Greeting : 
Whereas,  by  the  warrant  of  us,  the  undernamed  Justices  of 
the  Peace,  of  said  county,  bearing  date  the  2d  day  of  June,  in- 
stant, C.  D.  was  committed  to  your  custody  in  said  jail,  being 
charged  as  the  reputed  father  of  a  bastard  child,  whereof  it  was 
testified  to  us  that  A.  B.  of  Norwich,  in  said  county,  was  preg- 
nant, and  likely  to  become  chargeable  to  said  town,  [or  "county,"] 
and  was  so  committed  for  not  paying  the  costs  by  us  certified; 
and  executing  the  bond  consequent  upon  our  order  of  filiation, 
as  by  statute  required.  And,  whereas,  it  is  now  testified,  and 
appears  to  us,  upon  due  proof  to  us  given,  that  said  A.  B.  hath 
married  before  her  delivery  of  said  child,  [or,  "  has  miscarried  of 
such  child,"  or,  "  appears  not  to  have  been  pregnant  :"j  you  are. 


324  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

therefore,  hereby  commanded,  in  the  name  of  the  people  of  the 
state  of  New  York,  forthwith  to  reheve  the  said  C.  D.  out  of  your 
custody,  under  the  commitment  upon  our  warrant,  as  aforesaid. 
Given  under  our  hands  and  seals,  June  20th,  1849. 

James  Jackson,    [l.  s.] 
David  Long,         [l.  s.] 

If  the  person  charged  as  the  reputed  father  resides  in  any  other 
county  than  that  in  which  the  warrant  issued,  the  Justice  issu- 
ing the  warrant,  must  direct,  by  endorsement  thereon,  the  sum 
in  which  a  bond  shall  be  taken  of  the  person  so  charged.  (1  R. 
S.  S23,  sec.  7.) 

FORM    OF    ENDORSEMENT. 

I,  the  within  named  Justice  of  the  Peace,  direct  that  the  penal 
sum  in  which  any  bond  shall  be  taken,  of  the  within  named  C. 
D.  shall  be  one  thousand  dollars. 

James  Jackson. 

The  constable  having  the  warrant,  must  carry  it  to  some  Jus- 
tice of  the  county  where  the  person  charged  resides,  or  may  be 
found  ;  who,  upon  proof  of  the  hand  writing  of  the  Justice  issu- 
ing the  warrant,  must  endorse  his  name  thereon,  with  an  au- 
thority to  arrest  such  person  in  the  county  where  the  Justice  en- 
dorsing the  warrant  resides.  The  proof  required,  may  be  made 
by  the  constable  having  the  warvant.     (Id.) 

FORM    OF    ENDORSEMENT. 

Due  proof  having  been  made  to  me,  one  of  the  Justices  of  the 
Peace  of  the  county  of  Broome,  of  the  handwriting  of  the  within 
named  James  Jackson,  Justice,  I  hereby  authorize  the  arrest  of 
the  within  named  C.  D.,  in  the  county  of  Broome.  Dated  June 
5th,  1819. 

William  Stow,  Justice. 

Tile  Justice  endorsing  the  warrant,  cannot  be  prosecuted  for 
so  doing,  although  it  should  afterwards  appear  that  the  warrant 
was  iilf'gally  issued. 

When  the  person  charged  is  arrested,  he  must  be  taken  be- 
fore the  Justice  who  endorsed  the  warrant,  or  some  other  Jus- 


INTERNAL  POLICE  OF  THE  STATE.  325 

tice  of  the  same  county,  to  the  end  that  he  may  be  discharged, 
if  he  shall  elect  to  give  the  bond  required.  The  bond  so  to  be 
given,  must  be  in  the  penal  sum  which  is  directed  on  the  war- 
rant, and  with  one  or  other  of  the  conditions,  either  j^r*^ — to  in- 
demnify the  county  and  town,  or  city,  whore  the  bastard  shall 
have  been  born,  or  where  the  woman  likely  to  have  such  bas- 
tard, shall  be,  and  every  other  county,  town,  or  city,  which  may 
have  incurred  any  expense,  or  may  be  put  to  any  expense  for 
the  support  of  such  child  or  its  mother,  during  her  confinement 
and  recovery  therefrom,  against  all  such  expense,  and  to  pay 
the  cost  of  apprehending  such  father,  and  of  any  order  of  filia- 
tion that  may  be  made  ;  or  secondly,  that  such  person  will  ap- 
pear at  the  next  Court  of  Sessions,  to  be  holden  in  the  county 
where  such  warrant  was  originally  issued,  and  not  depart  the 
said  court  without  leave.     (1  R.  S.  823,  sec.  8.) 

FORM    OF    RECITAL    IN    THE    CONDITION,  &C. 

Whereas,  the  said  C.  D.  has  this  day  been  brought  before  the 
undernamed  William  Stow,  one  of  the  Justices  of  the  Peace  of 
the  county  of  Broome,  by  virtue  of  a  warrant  issued  by  James 
Jackson,  one  of  the  Justices  of  the  Peace  of  the  county  of  Chen- 
ango, whereon  the  name  of  the  said  William  Stow  is  endorsed, 
with  an  authority  to  arrest  the  said  C.  D.  in  the  county  of  Broome, 
{if  the  endorsement  and  authority  were  made  hy  a  differ- 
ent Justice  than  the  one  before  whom  the  person  charged  is 
brought,  vary  the  recital  thus :  "  whereon  the  name  of  John 
Burns,  one  of  the  Justices  of  the  Peace  of  the  said  county  of 
Broome,  is  endorsed  with  authority,"  &c.,]  in  which  warrant  it 
is  recited  that  A.  B.,  of  Norwich,  in  said  county  of  Chenango, 
upon  her  examination  on  oath,  before  the  said  James  Jackson, 
Justice,  did  declare  herself  pregnant  of  a  child,  which  is  likely 
to  be  born  a  bastard,  [or,  "  did  declare  that  she  was,  on  the  25th 
day  of  March  last,  at  Norwich,  aforesaid,  delivered  of  a  bastard 
child,"]  and  to  become  chargeable  [or,  "  and  which  is  chargea- 
ble"] to  said  town,  [or  ^'  county  ;"]  and  upon  the  said  warrant  is 
endorsed  the  direction  of  the  said  James  Jackson,  that  the  penal 
sum  in  which  any  bond  should  be  taken  of  the  said  C.  D.,  should 
be  one  thousand  dollars.  Now,  therefore,  if  the  said  C.  D.,  [in- 
sert one  of  the  conditions  i?i  the  preceding  paragraph.] 

If  the  bond  be  executed  with  either  of  the  conditions  specified 


326  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

in  the  statute,  the  Justice  taking  the  same,  must  discharge  the 
person  so  apprehended,  and  endorse  upon  the  warrant,  a  certifi- 
cate to  that  effect.     (1  R.  S.  824,  sec.  9.) 

FORM    OF    CERTIFICATE. 

I  certify  that  the  within  named  C.  D.,  who  was  brought  be- 
fore me,  one  of  the  Justices  of  the  Peace  of  the  county  of  Broome, 
by  virtue  of  the  within  warrant,  was  by  me  discharged  from  ar- 
rest, upon  his  executing  a  bond,  pursuant  to  statute.  Dated 
June  6th,  1849. 

William  Stow,  Justice. 

The  Justice  must  then  deliver  the  bond  taken  and  the  war- 
rant, to  the  constable,  who  is  required  to  deliver  them  to  the 
Justice  who  issued  the  warrant.     (Id.) 

When  a  bond  is  taken  out  of  the  county  in  which  the  prose- 
cution is  instituted,  with  a  condition  to  indemnify  the  county  or 
town,  (fcc,  no  order  of  filiation  is  required  ;  and  the  bond  may 
be  prosecuted  when  the  town  becomes  damnified.  But  if  the 
bond  be  conditioned  for  the  appearance  of  the  person  charged 
at  the  Sessions,  upon  its  return  to  the  Justice  who  issued  the 
warrant,  he  is  required  to  call  in  the  aid  of  another  Justice  of 
the  county,  and  the  two  Justices  must  proceed  to  the  examination, 
making  the  order  of  filiation,  fcc,  as  in  other  cases.  And,  in  this 
case,  the  examination  and  order  of  filiation,  &c.,  may  be  made 
in  the  absence  of  the  person,  unless  before  the  same  is  made,  he 
shall  'personally  require  of  the  Justice  issuing  the  warrant,  that 
such  examination  be  made  in  his  presence  ;  in  which  case,  rea- 
sonable notice  of  the  time  and  place  of  the  examination  must  be 
given  to  such  person  ;  and  he  may  appear  and  contest  the  charge, 
and  the  same  proceedings  must  be  had,  as  in  case  he  had  been 
brought  before  the  Justice.  (1  R.  S.  826,  sees.  18,  19.  1  J.  R. 
486.) 

If  the  person  so  charged  and  apprehended  in  another  county, 
neglect  or  refuse  to  execute  the  bond,  to  the  satisfaction  of  the 
Justice  before  whom  he  is  brought,  the  constable  must  take  him 
before  the  Justice  who  originally  issued  the  warrant,  to  be  pro- 
ceeded against  in  the  same  manner  as  if  he  had  been  arrested 
in  the  county  where  the  warrant  was  issued.  (1  R.  S.  824, 
sec.  10.) 


INTERNAL  POLICE  OF  THE  STATE.  327 

III  making  any  examination  authorized  by  the  statute,  the 
Justice  or  Justices  may  compel  the  mother  of  a  bastard,  charge- 
able, or  likely  to  become  chargeable,  or  a  woman  pregnant  with 
a  child  likely  to  be  born  a  bastard,  and  to  become  so  charge- 
able, to  testify  and  disclose  the  name  of  the  father.  And  in 
case  of  her  refusal,  may,  after  the  expiration  of  one  month,  from 
her  delivery,  if  she  shall  be  sufficiently  recovered,  commit  her 
to  jail,  there  to  remain  until  she  will  so  testify  and  disclose.  If 
she  so  refuse,  on  the  original  examination,  before  a  Justice,  the 
commitment  must  be  made  by  him  ;  if  she  refuse,  before  the 
two  Justices  associated,  to  make  an  order  of  filiation,  it  must  be 
done  by  the  two  so  associated.  (Id.  826,  sec.  20.)  The  follow- 
ing form  is  adapted  to  the  latter  case  : 

FORM    OF    WARRANT    TO    COMMIT. 

Chenango  County^  ss : 

To  any  Constable  of  said  County,  Greeting  : 

Whereas,  we,  the  undernamed  Justices  of  the  Peace  of  said 
county,  are  now  associated,  for  the  purpose  of  examining  into 
the  matter,  and  making  order  for  the  indemnity  of  the  town  of 
Norwich,  in  said  county,  [or,  "for  the  indemnity  of  the  said 
county,")  against  the  support  of  a  certain  child,  said  to  have 
been  born  a  bastard  of  the  said  A.  B.  and  chargeable,  [or,  "  like- 
ly to  become  chargeable  to  said  town,"]  [or,  "county";]  and 
whereas,  upon  the  application  of  the  overseers  of  the  poor  of 
said  town,  [or,  "  the  superintendents  of  the  poor  of  said  county,'"] 
we  have  caused  C,  D.  to  be  brought,  and  he  now  is  before  us, 
charged  as  the  father  of  such  child  ;  and  whereas,  we  have  re- 
quired the  said  A,  B.,  who  is  now  before  us.  to  submit  to  an  ex- 
amination on  oath,  in  the  presence  of  said  C.  D.,  and  to  testify 
touching  the  father  of  said  child,  and  to  disclose  his  name,  but 
the  said  A.  B.  wholly  refuses  so  to  testify  and  disclose  ;  and  inas- 
much as  it  now  appears  to  us,  upon  due  proof  thereof,  given 
on  oath  before  us,  that  more  than  a  month  has  elapsed  since  the 
said  A.  B.  was  delivered  of  such  child,  and  that  she  is  now  suf- 
ficiently recovered  from  her  confinement.  You  are,  therefore, 
hereby  commanded,  in  the  name  of  the  people  of  the  State  of 
New  York,  to  take  the  said  A.  B.  and  convey  her  to  the  com- 
mon jail  of  said  county,  the  keeper  whereof  is  required  to  de- 
tain the  said  A.  B.  in  his  custody  in  said  jail,  until  she  shall  so 


328  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

testify  and  disclose  the  name  of  such  father.     Given  under  our 

hands,  at  Norwich,  June  2d,  1849. 

James  Jackson,  >  ^ 

T^  T  }  Justices. 

David  Long,        ^ 

When  the  mother  of  a  bastard  child,  chargeable,  or  likely  to 
become  chargeable,  is  possessed  of  property  in  her  own  right, 
two  Justices  of  the  county,  on  the  application  of  a  superinten- 
dent or  overseer  of  the  poor,  are  required  to  examine  into  the 
matter,  and,  in  their  discretion,  make  an  order,  to  charge  the 
mother  with  the  weekly  payment  of  money  or  other  susten- 
tation,  for  the  support  of  the  child.  Although  the  statute  does 
not  in  terms  require,  that  the  mother  should  be  notified  to  show 
cause  against  the  order,  yet  this  notification  is  obviously  proper, 
and,  perhaps,  requisite.  I  propose  that  notice  be  ofiicially  given 
by  {summons.     (1  R.  S.  826,  sec,  21.) 

FORM    OF    SUMMONS. 

Chenango  County ^  ss. 

To  any  Constable  of  said  County,  Greeting  : 
You  are  hereby  required  to  summon  A.  B.  of  Norwich,  in  said 
county,  to  appear  before  us,  the  imdernamed  Justices  of  the 
Peace  of  said  county,  on  the  10th  day  of  June,  instant,  at  two 
o'clock  in  the  afternoon,  at  the  office  of  the  undernamed  James 
Jackson,  to  show  cause,  if  any  she  may  have,  why  we  should 
not  make  an  order  for  the  keeping  of  a  child,  said  to  have  been 
lately  born  of  the  said  A.  B.,  a  bastard,  and  to  be  chargeable,  or 
likely  to  become  chargeable,  to  said  county,  [or  "  town,"]  by 
charging  the  said  A.  B.  with  the  payment  of  money  weekly,  or 
other  sustentation — the  overseers  of  the  poor  of  said  town  [or 
"  the  superintendents  of  the  poor  of  said  county,"]  having  ap- 
plied to  us  for  that  purpose.  Given  under  our  hands,  at  Nor- 
v;ich,  June  5th,  1849. 

James  Jackson,  ) 

•TV  T  ?  Justices. 

David  Long,        \ 

form  op  an  order. 
Chenango  County^  ss. — Whereas,  E.  F.,  one  of  the  superin- 
tendents of  the  poor  of  said  county,  [or  "  G.  II.,  one  of  the 
overseers  of  the  poor  of  Norwich,  in  said  county,"]  has 
made  applicalioii  lo  us,  two  of  the  Justices  of  the  Peace  of  said 
county,  cnnplaiiiiiig,  that  A.  B.,  of  Norwich,  in  said  county, was 
lately  dcl'vercd  at  Norwich,  Q,foresaid,  of  a  bastard  child,  which 


INTERNAL  POLICE  OF  THE  STATE.  329 

is  chargeable,  [or  "  likely  to  become  chargeable,"]  to  said  county, 
[or  "  town,"]  and  that  said  A.  B.  is  possessed  of  property  in  her 
own  right,  and  is  of  sufficient  ability  to  support  said  child,  and 
desiring  that  we  should  examine  into  the  matters,  and  make  or- 
der for  the  relief  of  such  county,  [or  "  town."]  And  whereas, 
upon  examination  into  the  matters  of  said  application,  and  upon 
due  proof  thereof  on  oath,  before  us  given — and  the  said  A.  B., 
although  present  at  such  examination,  not  showing  any  suffi- 
cient cause  to  the  contrary — [or,  "  and  the  said  A.  B.  neglect- 
ing to  appear  before  us,  and  show  cause,  if  any  she  might  have, 
to  the  contrary,  although  duly  summoned  so  to  appear."]  There- 
fore we  do  hereby  order,  that  the  said  A.  B.  pay  weekly  to  said 
overseers,  [or  "  to  said  superintendents,"]  the  sum  of  one  dollar, 
for  the  support  of  said  child.     Witness  our  hands,  at  Norwich, 

June  10th,  1849. 

James  Jackson, 
David  Long, 


Justices. 


The  order  will,  perhaps,  more  usually  be  made  for  the  pay- 
ment of  money  conditionally,  thus  : 

"  We  do,  therefore,  hereby  order,  that  unless  the  said  A.  B. 
shall  nurse,  and  take  care  of  said  child  herself,  she  shall  pay 
weekly  to  said  overseers,"  &c.  {as  before.) 

A  copy  of  the  order,  subscribed  by  the  Justices,  should  be 
served  on  the  woman  ;  and  if  she  means  to  appeal  from  the  or- 
der, she  must  execute  a  bond  to  the  people  of  this  state,  in  such 
penal  sum  as  the  Justices  shall  direct,  and  with  good  and  suffi- 
cient sureties  to  appear  at  the  next  Court  of  Sessions,  and  not 
depart  the  court  without  leave.  The  execution  of  such  a  bond, 
is,  in  itself,  to  be  deemed  an  appeal,  without  further  notice. 
(1  R.  S.  827,  sec.  24.) 

For  the  form  of  such  a  bond,  the  form  heretofore  given  for  a 
similar  bond,  to  be  executed  by  the  putative  father,  may  be  va- 
ried to  suit  this  case. 

If,  after  service  of  the  order,  the  woman  refuse  or  neglect  to 
perform  the  same,  she  is  to  be  committed  to  jail,  until  she  does 
comply,  unless  she  shall  have  executed  the  bond,  as  aforesaid. 

FORM    OF    warrant    TO    COMMIT. 

Chenango  County,  ss. 

To  any  Constable  of  the  said  County,  Greeting. 
Whereas,  by  an  order,  duly  made  by  us,  the  undernamed  Jus- 


330  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

tices  of  the  Peace  of  said  county,  bearing  date  the  10th  day  of 
June,  instant,  we  made  direction  for  the  keeping  of  a  certain 
bastard  child,  lately  bom  in  Norwich,  in  said  county,  of  the 
body  of  A.  B.,  which  is  chargeable  to  said  town,  [or  "  county,"] 
by  charging  the  said  A.  B.  with  the  payment,  &,c. — [as  in  the 
oi'de)'] — which  order  was  so  made,  upon  the  application  to  us 
of  the  overseers  of  the  poor  of  said  town,  [or  "of  the  superin- 
tendents of  the  poor  of  the  said  county  ;"j  and  after  due  notice 
to  the  said  A.  B.  to  show  cause,  if  any  she  might  have,  against 
the  making  of  such  order.  And  whereas,  a  copy  of  said  order 
subscribed  by  us,  has  been  served  upon  the  said  A.  B.,  and  she 
has  not  executed  a  bond,  as  by  law  authorized,  for  her  appear- 
ance at  the  next  Court  of  Sessions,  (fee,  and  inasmuch  as  it  is 
now  proved  before  us,  and  fully  appears,  that  said  A.  B,  has 
wholly  neglected  to  perform  the  requirement  in  our  said  order  : 
You  are,  therefore,  hereby  commanded,  in  the  name  of  the  peo- 
ple of  the  State  of  New  York,  to  take  the  said  A.  B.  and  con- 
vey her  to  the  common  jail  of  said  county,  there  to  remain, 
without  bail,  until  she  shall  comply  with  said  order,  or  execute 
the  bond  authorized  by  statute,  as  aforesaid.  Given  under  our 
hands,  at  Norwich,  June  20ih,  1849. 

James  Jackson,  )  j^^^.^^^^ 
David  Long,       ) 

If  the  mother  execute  the  bond,  the  Justices  must  transmit 
the  same,  with  the  order  of  sustenance,  to  the  clerk  of  the 
court,  before  the  opening  of  the  next  Court  of  Sessions  ;  or 
copies  of  such  bond  and  order,  signed  by  the  Justices.  And 
all  further  proceedings  in  the  case,  are  to  be  then  conducted 
before  the  Court  of  Sessions.     (1  R.  S.  827,  sec.  26.) 

It  may  happen  that  the  woman  will  refuse  to  appear  volun- 
tarily before  a  Justice  or  Justices,  to  testify,  and  disclose  the 
name  of  a  putative  father.  In  such  cases,  as  the  Justices  have 
authority  to  compel  such  testimony  and  disclosure,  they  will  be 
required  to  issue  process  to  enforce  her  attendance,  and  particu- 
larly iu  the  case  where  they  arc  associated  to  make  an  order  of 
filiation  ;  for  in  that  case,  the  woman  must  be  examined  on 
oatli,  in  the  j)resencc  of  the  person  charged.  I,  therefore,  sub- 
join the  form  of  process  to  bring  the  woman  before  the  Justices 
associated  to  make  an  mdcr  of  filiation,  and  which,  with  slight 
variation,  may  be  used  in  other  cases. 


INTERNAL  POLICE  OF  THE  STATE.  331 

FORM    OF    PROCESS. 

Chenango  County,  ss : 

To  any  Constable  of  said  County,  Greeting  : 

Whereas,  we,  the  undernamed  Justices  of  the  Peace  of  said 
county,  have,  upon  the  application  of  the  overseers  of  the  poor 
of  the  town  of  Norwich,  in  said  county, — [or  "  the  superintend- 
ents of  the  poor  of  said  county,"] — associated  for  the  purpose 
of  examining  into  the  matter  of  a  certain  complaint  made  to  us 
by  said  overseers — [or  "  superintendents,"] — that  A.  B.  of  said 
town,  is  now  pregnant  with  a  child,  which,  when  born,  will  be 
a  bastard,  and  which  is  likely  to  become  chargeable  to  said 
town,  [or  "  county,"] — [or,  "  that  A.  B.  has  been  delivered,  in 
said  town,  of  a  bastard  child,  which  is  chargeable,  or  likely  to 
become  chargeable  to  said  town  or  county,"] — and  C.  D.  having 
been  brought  before  us  this  day,  charged  to  be  the  putative 
father  of  said  child  :  Now,  therefore,  to  the  intent  that  the  said 
A,  B.  may  be  examined  before  us,  on  oath,  and  in  the  presence 
of  the  said  C.  D.,  touching  the  father  of  said  child,  you  are 
hereby  commanded,  in  the  name  of  the  people  of  the  state  of 
New  York,  to  bring  the  said  A.  B.  forthwith  before  us,  at  the 
office  of  the  undernamed  James  Jackson,  in  Norwich  aforesaid. 

Given  under  our  hands,  June  2,  1849. 

James  Jackson,  ) 

T\  t  }  Justices. 

Uavid  Long,       ^ 

If  the  putative  father,  or  the  mother  of  a  bastard,  or  of  any 
child  likely  to  be  born  a  bastard,  and  likely  to  become  chargea- 
ble, run  away  from  their  ordinary  residence,  leaving  such  bas- 
tard or  child,  the  overseers  of  the  poor  of  the  town,  or  the 
superintendents  of  the  poor  of  the  county,  may  apply  to  any 
two  Justices  of  the  Peace  of  the  county,  where  any  estate,  real 
or  personal,  of  such  father  or  mother  may  be,  for  a  warrant  to 
seize  such  estate.  Proof  of  the  facts  must  be  made  to  the  Jus- 
tices.    (1  R.  S.  831,  sec.  52.) 

FORM    OF    WARRANT. 

Chenango  Count?/,  ss. 
To  the  Overseers  of  the  Poor  of  the  town  of  Norwich,  in  said 
County,— [or,  "  To  the  Superintendents  of  the  said  County  :"j 
It  appearing  to  us,  two  of  the  Justices  of  the  Peace  of  the 


332  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

said  county,  as  well  by  the  representation  and  application  to  us 
made  by  the  said  overseers,  [or  "  the  said  superintendents,]  as 
upon  due  proof  of  the  facts  before  us  given,  that  0.  D.  is  the 
father  of  a  bastard  child,  whereof  A.  B,  of  said  town,  is  now 
pregnant,  and  which,  when  born,  is  likely  to  become  chargeable 
to  said  town,  [or  "  county,"]  [or  "  that  C.  D.  is  the  father  of  a 
bastard  child,  lately  born  in  the  said  town  of  Norwich,  and 
which  is  chargeable, — or  likely  to  become  chargeable, — to  the 
said  town — or  said  county ;"]  and  that  C.  D.  has  absconded 
from  said  town,  which  is  the  place  of  his  ordinary  residence, 
leaving  in  said  county  some  estate,  real  or  personal :  And 
whereas,  the  said  overseers  [or  "  superintendents"]  have  applied 
to  us  for  our  warrant,  to  seize  said  estate  :  We,  therefore,  au- 
thorize you  to  take  and  seize  the  goods,  chattels,  effects,  things 
in  action,  and  the  lands  and  tenements  of  the  said  C.  D.  wliere- 
ever  the  same  may  be  found  in  your  county.  And  you  will, 
immediately  upon  such  seizure,  make  an  inventory  of  the  pro- 
perty by  you  taken,  and  return  the  same,  together  with  your 
proceedings  to  the  next  Court  of  Sessions  of  the  Peace  of  said 
county. 

Given  under  our  hands  at  Norwich,  May  30th,  1849. 

James  Jackson, 

David  Long, 


i  Justices. 


The  same  proceedings  must  be  had  under  this  warrant,  and 
it  may  be  discharged  for  the  same  cause,  and  in  the  same 
manner,  as  is  provided  in  relation  to  absconding  parents.  (I  R. 
S.  831,  sec.  52.) 

The  Justices  who  have  made  an  order  of  filiation  or  mainte- 
nance, cither  against  the  putative  father,  or  the  mother,  may, 
from  time  to  time,  vary  the  amount  directed  to  be  paid  by  redii- 
cing  the  sum,  as  circumstances  may  require.  But  the  sum  can 
be  increased  only  by  the  Court  of  Sessions. 

In  case  of  reduction  by  the  Justices,  it  seems  proper,  although 
the  statute  is  silent  on  the  subject,  that  they  should  make  a  new 
order  expressive  of  their  determination,  and  give  a  copy  to  the 
person  charged.  As  the  application  for  reduction  will  probably, 
in  most  instances,  be  made  by  the  person  charged,  the  over- 
seers or  superintendents,  as  the  case  may  require,  should  have 
an  opportunity  of  showing  cause  against  such  reduction,  and 
shoiili],  therefore,  be  notified  of  the  application. 


INTERNAL  POLICE  OF  THE  STATE.  333 

FORM    OF    ORDER. 

Chenango  County^  ss. 
To  the  Overseers  of  the  Poor  of  the  town  of  Norwich  in  said 

County,   [or,    "  The   Superintendents   of  the   Poor  of  said 

County  :"j 

Whereas,  by  an  order  of  fiUation,  by  us  made,  bearing  date 
the  2d  day  of  June  last,  we  did  determine  that  C.  D.  is  the 
father  of  a  certain  bastard  child,  then  lately  born  in  Norwich 
aforesaid,  and  did  therein  order,  among  other  things,  that  tlie 
said  C,  D.  should  pay  to  you,  the  said  overseers  [or  "  superin- 
tendents"] for  the  support  of  said  child,  the  weekly  sum  of  one 
dollar,  so  long  as  said  child  shall  continue  chargeable  to  said 
town  [or  "  county"] — And  whereas,  upon  the  application  of  the 
said  C.  D.,  we  have  this  day  made  inquiry  into  the  circumstan- 
ces of  the  case,  and  heard  the  proofs  and  allegations  to  us 
submitted  in  relation  thereto  ;  and  it  appearing  to  us  upon  such 
inquiry,  that  the  circumstances  in  relation  to  said  bastard  child, 
render  it  proper  and  expedient  that  the  sum  required  to  be  paid 
by  the  said  C.  D.  by  our  former  order  should  be  reduced,  as 
hereinafter  expressed.  And,  inasmuch  as  the  said  overseers — 
[or  "  superintendents"] — have  shown  before  us  no  sufficient 
reason  against  such  reduction,  although  appearing  before  us, — 
[or  "  notified  to  appear  before  us,  and  show  such  cause,  if  any 
they  might  have."] 

We  do,  therefore,  reduce  the  sum  required  to  be  paid  weekly, 
by  the  said  C.  D.  by  our  former  order  as  aforesaid,  to  the  weekly 
sum  of  seventy-five  cents. 

Given  under  our  hands  at  Norwich,  July  1,  1849. 

James  Jackson,  ; 
David  Long,         J"«^^^^^' 


Whenever  a  compromise  shall  be  made  with  the  putative 
father  of  a  bastard  child,  pursuant  to  section  sixty-eight  and 
sixty-nine  of  title  six,  of  chapter  twenty  of  the  first  part  of  the 
Revised  Statutes,  the  mother  of  such  child,  on  giving  security 
for  the  support  of  the  child,  and  to  indemnify  the  city  and 
county,  or  the  town  and  county,  from  the  maintenance  of  the 
child,  to  the  satisfaction  of  the  officers  making  the  compromise, 
shall  be  entitled  to  receive  the  moneys  paid  or  secured  by 


334  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

such  putative  father,  as  the  consideration  of  such  compromise. 
(Sess.  Laws,  1838,  ch.  202,  p.  173,  sec.  1.) 

When  the  mother  of  such  child  shall  be  unable  to  give  such 
security,  but  shall  be  able  and  willing  to  nurse  and  take  care  of 
the  child,  she  shall  be  paid  the  same  weekly  allowance  for  nur- 
sing and  taking  care  of  the  child,  out  of  the  moneys  paid  by 
the  father  on  such  compromise,  as  he  shall  have  been  liable  to 
pay  by  the  order  of  filiation ;  such  weekly  sum  to  be  paid  the 
mother,  may  be  prescribed,  regulated,  or  reduced,  as  in  the  case 
of  an  order  of  filiation.     (Id.  sec.  2.) 

5.   Of  the  Safe  Keeping  and  Care  of  Lunatics. 

Any  person  who,  by  lunacy  or  otherwise,  becomes  furiously 
mad,  or  so  far  disordered  in  his  senses  as  to  endanger  his  own 
person,  or  the  person  or  property  of  others,  if  permitted  to  go  at 
large,  may  be  confined.     (1  R.  S.  805.) 

If  the  lunatic  has  sufficient  property  to  maintain  himself,  the 
committee  of  his  person  and  estate  must  provide  a  place  for  his 
confinement.  If  he  has  not  sufficient  property,  his  parents  and 
children  must  confine  and  maintain  him,  if  of  sufficient  ability. 
AVhen  there  is  no  such  committee,  nor  parent,  or  child,  of  suffi- 
cient ability,  or  in  case  of  their  neglect  or  refusal,  the  duty  de- 
volves upon  the  overseers  of  the  poor  of  the  city  or  town  where 
the  mad  person  shall  be  found.     (Id.) 

It  is  made  the  special  duty  of  the  overseers  of  the  poor  of  a 
city  or  town  where  any  such  lunatic  or  mad  person  shall  be 
found,  to  apply  to  two  Justices  of  the  Peace  of  the  same  town, 
for  their  warrant,  directing  his  confinement.  Such  Justices  may 
also,  whenever  they  deem  it  necessary,  issue  such  warrant, 
either  upon  their  own  view,  or  upon  the  information  or  oath  of 
others.     (Id.) 

Where  the  Justices  proceed  upon  the  information  of  others,  it 
would  be  safer  and  more  regular  to  take  the  information  in  wri- 
ting, and  on  oath. 

FORM    OF    INFORMATION. 

Town  of  Oxford,  ss. — Robert  Morris,  being  duly  sworn,  makes 
oath  and  gives  information,  before  David  Long  and  Alvin  Pe- 
ters, Justic(!S  of  the  Peace  of  the  said  town,  that  Henry  Brown, 
wlio  is  now  in  said  town,  is  so  far  disordered  in  his  senses,  as. 


INTERNAL  POLICE  OF  THE  STATE.  335 

in  their  opinion  and  belief,  to  endanger  his  own  person,  or  the 

person  or  property  of  others,  if  permitted  to  go  at  large, 

Robert  Morris. 

Subscribed  and  sworn  before  us, 

this  1st  day  of  July  1849. 

David  Long, 

Justices. 


.( 


Alvin  Peters 

When  the  Justices  are  desirous  of  becoming  further  satisfied 
of  the  necessity  of  the  confinement  by  an  examination,  [and 
such  examination  is  expressly  required,  when  they  proceed  upon 
the  application  of  the  overseers  of  the  poor,]  the  proper  course 
seems  to  be,  to  issue  their  warrant,  to  bring  the  kmatic  before 
them. 

FORM    OF    A    WARRANT. 

Chenango  County,  ss. 

To  any  Constable  of  the  town  of  Oxford,  in  said  County, 
Greeting  : 

Whereas,  the  overseers  of  the  poor  of  said  town,  have  made 
application  to  us,  two  of  the  Justices  of  the  Peace  of  the  said 
town,  representing  [or,  "  whereas,  information  on  oath,  has  been 
given  to  us,  two  of  the  Justices  of  the  Peace  of  the  said  town,"] 
that  Henry  Brown,  who  is  now  in  said  town,  is  so  far  disordered 
in  his  senses  as  to  endanger  his  own  person,  or  the  person  or 
property  of  others,  if  suffered  to  go  at  large.  You  are,  therefore, 
hereby  commanded,  in  the  name  of  the  people  of  the  state  of 
New  York,  forthwith  to  apprehend  the  said  Henry  Brown,  and 
bring  him  before  us,  at  the  office  of  the  undernamed  David  Long, 
in  Oxford,  aforesaid,  that  we  may  examine  the  said  Henry 
Brown,  and  make  such  further  order  in  the  premises,  as  the  ne- 
cessities of  the  case  and  the  law  may  require. 

Given  under  our  hands  at  Oxford,  July  1st,  1849. 

David  Long,      ; 
A  T>  >  Justices. 

Alvin  Peters,  ^ 

warrant  of  two  justices  to  confine  a  lunatic. 

Town  of  Oxford^  ss. 

To  the  Constables  and  Overseers  of  the  Poor  of  said 
town.  Greeting  : 
Whereas,  upon  application  made  by  the  said  overseers  of  the 


336  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

poor  to  us,  two  of  the  Justices  of  the  Peace  of  said  town,  and 
upon  personal  view  and  examination,  by  us  had  and  made,  [or, 
"  whereas,  upon  our  own  view  ;"  or,  "  whereas,  u-pon  information 
upon  oath,  to  21s  given,'"]  as  well  as  by  the  evidence  of  two  re- 
putable physicians  under  oath,  we  are  satisfied  that  Henry 
Brown,  now  in  said  town,  is  so  far  disordered  in  his  senses,  as 
to  endanger  his  own  person,  or  the  person  or  property  of  others, 
if  sutfered  to  go  at  large,  and  deeming  it  necessary  that  he  should 
be  forthwith  confined  :  We,  therefore,  command  you,  in  the 
name  of  the  people  of  the  state  of  New  York,  forthwith  to  ap- 
prehend the  said  Henry  Brown,  and  him  safely  lock  up  and 
confine,  in  such  secure  place  as  may  be  provided,  in  conformity 
to  law.  Given  under  our  hands  at  Oxford,  aforesaid,  July  1st, 
1849. 

David  Long, 


'J 
Alvin  Peters, 


Justices. 


It  is  the  duty  of  the  overseers  to  whom  the  warrant  is  di- 
rected, to  procure  a  suitable  place  for  the  confinement  of  the  lu- 
natic, as  therein  directed.  (1  R.  S.  805,  sec.  5.)  This  confine- 
ment must,  however,  be  understood  as  only  temporary,  and  such 
as  is  demanded  by  the  immediate  and  pressing  exigencies  of  the 
case. 

It  is  provided,  that  loithin  ten  days,  the  lunatic  shall  be  sent 
to  the  State  Lunatic  Asylum,  or  to  such  public  or  private  asylum 
as  may  be  approved  by  a  standing  order,  or  resolution  of  the  su- 
pervisors of  the  county.  The  superintendents  and  overseers  of 
the  poor,  are  severally  enjoined  to  see  that  this  provision  is  car- 
ried into  eficct  in  the  most  humane  and  speedy  manner  ;  as  well 
in  case  the  lunatic  or  his  relatives  are  of  sufficient  ability  to  de- 
fray the  expenses  as  in  case  of  a  pauper.     (1  R.  S.  811.) 

ORDER  SENDING  A  LUNATIC  TO  THE  ASYLUM. 

Chenango  County,  ss. — It  is  hereby  ordered  by  the  superin- 
tendents of  the  poor  of  the  county  aforesaid,  that  Henry  Brown, 
a  lunatic,  now  in  the  town  of  Oxford,  in  said  county,  be  sent  to 
the  State  Lunatic  Asyhnn,  [or,  "  to  the  jmblic"  or  ^^  private  asy- 
lum, at ,  the  said  asylum  having  been  ajtproved  by  a 


INTERNAL  POLICE  OF  THE  STATE.  337 

standing  order  or  resolution  of  the  board  of  supervisors  of  said 

counti/.''] 

Given  under  our  hands,  at  Oxford,  July  8th,  1849. 

James  Jackson,      ^  Superintendents 
Samuel  Kelly,  of  the  Poor. 

William  Brown,  ) 

In  all  cases  of  confinement  under  the  statute,  whether  of  a 
pauper  or  not,  neither  Justices,  superintendents,  nor  overseers  of 
the  poor,  can  order  or  approve  of  such  confinement,  without 
having  the  evidence  of  two  reputable  physicians  under  oath,  as 
to  the  alleged  fact  of  insanity.     (1  R.  S.  811,  sec.  35.) 

affidavit  of  physicians. 

Chenango  County^  ss. — Thomas  Jackson  and  John  Bogert, 
physicians,  living  in  the  town  of  Oxford,  county  aforesaid,  be- 
ing severally  sworn,  depose  and  say,  and  each  for  himself,  de- 
poses and  says,  that  they  have  carefully  examined  into  the  men- 
tal state  and  condition  of  Henry  Brown,  and  particularly  in 
reference  to  his  alleged  insanity,  and  that  in  their  opinion  de- 
rived from  such  examination,  the  said  Henry  Brown  is  a  con- 
firmed Lunatic. 

Thomas  Jackson. 
John  Bogert. 
Sworn  this  8th  day  of  July,  1849, 
before  me, 

David  Long,  Justice. 

The  affidavit  must  be  filed,  with  a  brief  report  of  all  the  other 
proofs,  facts  and  proceedings  in  the  case,  in  the  oifice  of  the 
county  clerk.  The  county  clerk  is  required  to  file  the  papers 
and  register,  with  date,  the  names  and  residences  of  the  lunatic 
and  officers  severally,  in  tabular  form,  in  the  book  of  miscella- 
neous records  kept  in  his  ofiice.  The  certificate  of  the  clerk; 
and  seal  of  the  court  verifying  such  facts,  will  warrant  the  luna 
tic's  admission  into  the  asylum.     (Id.) 

If  any  lunatic  confined  under  the  statute  is  dissatisfied  with 
any  final  decision  or  order  of  the  Justices,  or  of  any  overseer  or 
superintendent  of  the  poor,  he  may,  within  three  days  after  such 
order  or  decision,  appeal  to  the  judge  of  the  county,  making 

22 


338  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

complaint  on  oath  ;  and  the  Judge  must  thereupon  stay  his  be- 
ing sent  out  of  the  county,  and  forthwith  call  a  jury  to  decide 
upon  the  fact  of  lunacy.  After  a  full  and  fair  investigation, 
aided  by  the  testimony  of  two  respectable  physicians,  if  the  jury 
find  him  sane,  the  judge  must  forthwith  discharge  him,  other- 
wise he  must  confirm  the  order  for  his  being  immediately  sent 
to  an  asylum.     (1  R.  S.  811,  sec.  34.) 

In  case  the  Justices  refuse  to  make  an  order  for  confinement, 
they  must  state  their  reasons  for  such  refusal  in  writing,  so  that 
any  person  aggrieved  thereby,  may  appeal,  as  above,  to  a  County 
Judge,  who  must  hear  and  determine  the  matter  in  a  summary 
way,  or  call  a  jury,  as  he  may  think  most  fit  and  proper.  (Id.) 
In  every  case  of  appeal,  the  Judge  has  the  same  power  to 
take  testimony  and  compel  the  attendance  of  witnesses  and 
jurors,  as  a  Justice  has  in  civil  cases.     (Id.) 

The  superintendent  of  the  State  Lunatic  Asylum,  is  required 
to  make,  in  a  book  kept  for  the  purpose,  at  the  time  of  receiving 
a  lunatic,  a  minute,  with  date,  of  the  name,  residence,  office, 
and  occupation  of  the  person  by  whom,  and  by  whose  authori- 
ty, each  insane  person  is  brought  to  the  asylum,  and  have  all 
the  orders,  warrants,  requests,  certificates,  and  other  papers,  ac- 
companying him,  forthwith  copied  into  the  same.  (1  R.  S.  812, 
sec.  37.) 

Each  county  may,  at  all  times,  have  one  indigent  insane  pa- 
tient in  the  asylum^  whose  disease,  at  the  time  of  admission, 
was  a  first  attack,  and  did  not  exceed  six  months  ;  and  such 
further  number  of  either  eld,  or  recent  cases,  as  the  asylum  can 
accommodate,  in  proportion  to  the  insane  population  of  the 
county.  The  patients  must  be  designated  by  the  superinten- 
dents of  the  poor,  or,  if  the  county  has  no  such  superintendents, 
by  the  county  Judge.     (Id.  sec.  37.) 

Whenever  there  are  vacancies  in  the  asylum,  the  managers 
may  authorize  the  superintendent  to  admit,  under  special  agree- 
ment, such  recent  cases  as  may  seek  admission,  under  peculiarly 
afflictive  circumstances,  or  which,  in  his  opinion,  promise  spee- 
dy recovery.     (1  R.  S.  813,  sec.  42.) 

All  town  and  county  officers  sending  a  patient  to  the  asylum, 

are  rociuirod,  bofore  sending  him,  to  see   that  he  is  in  a  state  of 

perf(!ctly  bodily  cleanliness,  and    is   comfortably    clothed,  and 

provided  with  suifnljlo  clinngos  of  raiment.     (Id.  sec.  43.) 

When  .in  insane  person,  in  indigent  circimistanccs,  has  been 


INTERNAL  POLICE  OF  THE  STATE.  339 

sent  to  the  asylum  by  his  friends,  who  have  paid  his  bills  there 
for  six  months,  if  the  superintendent  certifies  that  he  is  a  fit  pa- 
tient, and  likely  to  be  benefitted  by  remaining  in  the  institution, 
the  supervisors  of  the  county  of  his  residence  are  authorized 
and  required,  upon  an  application  under  oath  in  his  behalf,  to 
raise  a  sum  of  money  sufficient  to  defray  the  expenses  of  his 
remaining  there  another  year,  and  pay  the  same  to  the  treasurer 
of  the  asylum  ;  and  they  are  required  to  repeat  the  same  for 
two  succeeding  years,  upon  like  application,  and  the  production 
of  a  new  certificate,  each  year,  of  like  import,  from  the  superin- 
tendent.    (Id.  sec.  40.) 

When  a  person  in  indigent  circumstances,  not  a  pauper,  be- 
comes insane,  application  may  be  made,  in  his  behalf,  to  the 
Judge  of  the  county  where  he  resides.  The  Judge  must,  there- 
upon, call  two  respectable  physicians,  and  other  credible  wit- 
nesses, and  fully  investigate  the  facts  of  the  case,  as  well  as  to 
his  insanity,  as  with  regard  to  his  indigence.  The  question  of 
insanity  may  be  passed  upon,  either  with  or  without  the  verdict 
of  a  jury.  If  the  Judge  certifies  that  satisfactory  proof  has  been 
adduced,  showing  the  person  insane,  and  his  estate  is  insufficient 
to  support  him  and  his  family,  (or  to  support  himself,  if  he  has 
no  family,)  on  such  certificate,  authenticated  by  the  county 
clerk,  and  seal  of  the  county  court,  he  must  be  admitted  into  the 
asylum,  and  supported  there  at  the  expense  of  the  county,  un- 
til restored  to  soundness  of  mind — provided  such  restoration  is 
effected  in  two  years.  The  Judge,  in  such  case,  has  requisite 
power  to  compel  the  attendance  of  witnesses  and  jurors.  He  is 
required  to  file  the  certificate  of  the  physicians,  taken  under 
oath,  and  other  papers,  with  a  report  of  his  proceedings  and  de- 
cision, with  the  clerk  of  the  county,  and  report  the  fiicts  to  the 
supervisors,  whose  duty  it  will  be,  at  their  next  annual  meeting, 
to  raise  the  money  requisite  to  meet  the  expenses  of  support. 
(IR.S.  812,  sec.  39.) 

FORM    OF  APPLICATION    TO    COUNTY    JUDGE. 

To  the  Hon.  A.  B.  Ketcham,  County  Judge  of  Chenango 

County. 
The  petition  of  Samuel  Peterson,  of  the  town  of  Norwich,  in 
said  county,  respectfully  showeth  : 
That  Henry  Brown,  now  a  resident  of  said  town,  is  a  lunatic  ; 
that  he  is  now  in  the  care  and  custody  of  James  Jackson,  at  the 


340  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

town  aforesaid  ;  that  he  is  in  indigent  circumstances,  and  has  no 
property  in  his  own  possession,  or  held  by  any  person  in  trust 
for  him,  sufficient  for  his  support,  [or  "  for  the  support  of  him- 
self and  his  family,"]  under  the  visitation  of  insanity  aforesaid. 
Your  petitioner  tiierefore  prays,  that  an  examination  and  in- 
vestigation may  be  had  in  the  premises,  pursuant  to  statute. 

Samuel  Peterson. 

order  of  judge  on  the  petition. 

In  the  Matter  of  Henry  Brown,  ^ 

an  alleged  indigent  Lunatic.       ) 

Upon  the  petition  of  Samuel  Peterson,  of  the  town  of  Nor- 
wich, in  the  county  of  Chenango,  it  is  hereby  ordered,  that  Tho- 
mas Jackson  and  John  Bogert,  two  respectable  physicians  of  said 
county,  be  hereby  designated  and  appointed,  pursuant  to  statute, 
to  examine  Henry  Brown,  in  respect  to  his  alleged  insanity  ;  and 
that  they  appear  before  me,  at  my  office,  in  Norwich,  on  the 
12th  day  of  July,  instant,  at  ten  o'clock  in  the  forenoon,  and 
certify  their  respective  opinions  in  relation  thereto;  and  that,  at 
the  time  and  place  aforesaid,  other  witnesses  be  examined, 
touching  the  mental  condition  and  pecuniary  circumstances  of 
the  said  Henry  Brown.  Given  under  my  hand  this  10th  day 
of  July,  1849. 

A.  B.  Ketcham,  County  Judge 
of  Chenango  County. 

FORM    OF    SUBPCENA. 

To  John  Doe,  Richard  Roe,  &c. 

You  and  each  of  you  are  hereby  commanded,  in  the  name 
of  the  people  of  the  State  of  New  York,  to  appear  before  me, 
at  my  office,  in  the  town  of  Norwich,  on  the  12th  day  of  July, 
instant,  at  ten  o'clock  in  the  forenoon,  to  testify  what  you,  or 
cither  of  you,  may  know,  touching  the  mental  condition  and  pe- 
cuniary circumstances  of  Henry  Brown,  now  in  the  town  of 
Norwich,  in  tlio  coimty  of  Chenango.  Given  under  my  hand, 
at  Norwich,  this  10th  day  of  July,  1849. 

A.  B.  Ketcham,  County  Judge 
of  Chenango  County, 


INTERNAL  POLICE  OF  THE  STATE.  341 

CERTIFICATE    OF    PHYSICIANS. 

In  the  Matter  of  Henry  Brown,  ? 
an  alleged  indigent  Lunatic.     ) 

We,  the  undersigned  physicians,  resident  in  the  town  of  Nor- 
wich, county  of  Chenango,  being  severally  sworn,  do  certify, 
and  each  for  himself  certifies,  under  oath,  that,  in  pursuance  of 
the  order  of  A.  B.  Kelcham,  County  Judge  of  Chenango  county, 
made  in  the  above  entitled  matter,  and  bearing  date  the  10th  day 
of  July,  1849,  we  have  carefully  examined  into  the  mental  state 
and  condition  of  Henry  Brown,  above  named,  and  particularly 
in  reference  to  his  alleged  insanity ;  and  that,  in  our  opinion,  de- 
rived from  such  examination,  the  said  Henry  Brown  is  a  con- 
firmed lunatic.     Dated  July  12th,  1849. 

Thomas  Jackson. 
John  Bogert. 
Subscribed  and  sworn,  this  12th  day  of 
July,  1849,  before  me, 

A.  B.  Ketcham, 
County  Judge  of  Chenango  County. 

certificate  of  the  county  judge. 

In  the  Matter  of  Henry  Brown,  ? 

an  alleged  indigent  Lunatic.       ) 

Application  having  been  made  to  me,  by  Samuel  Peterson,  of 
the  town  of  Norwich,  county  of  Chenango,  for  an  examination 
into  the  mental  state  and  condition,  and  alleged  indigence,  of 
Henry  Brown,  of  the  said  town  :  I,  thereupon,  appointed  Tho- 
mas Jackson  and  John  Bogert,  two  respectable  physicians  of  the 
said  town,  to  examine  the  said  Henry  Brown,  who  have  ap- 
peared before  me,  and  certified  that  the  said  Henry  Brown  is  a 
confirmed  lunatic ;  and  I  have  also  had  satisfactory  proof  touch- 
ing the  indigence  of  the  said  Henry  Brown  :  Now,  therefore,  I 
do  hereby  certify,  that  it  satisfactorily  appears  to  me,  from  said 
certificate  and  proof,  that  the  said  Henry  Brown  is  a  lunatic, 
and  that  he  has  no  estate  of  any  kind  sufficient  for  his  support, 
[or  "  for  the  support  of  himself  and  his  family,"]  under  the  dis- 
pensation aforesaid.  Given  under  my  hand,  at  Norwich,  this 
12th  day  of  July,  1849. 

A.  B.  Ketcham,  County  Judge 
of  Chenango  County. 


342  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

Every  insane  person,  supported  in  the  asylum,  is  personally- 
liable  for  his  maintenance  there,  and  for  all  necessary  expenses 
incurred  by  the  institution  in  his  behalf;  and  the  committee,  re- 
lative, town,  city,  or  county,  that  would  have  been  bound  by 
law  to  provide  for,  and  support  him,  if  he  had  not  been  sent  to 
the  asylum,  are  liable  to  pay  the  expenses  of  his  clothing  and 
maintenance  in  the  asylum,  and  actual  necessary  expenses  lo, 
and  from  the  same.     (1  R.  S.  814,  sec.  49.) 

The  expenses  of  clothing  and  maintaining  in  the  asylum,  a 
patient,  who  has  been  received  upon  the  order  of  any  court,  or 
officer,  must  be  paid  by  the  county  from  which  he  was  sent  to 
the  asylum.  The  treasurer  of  the  county  is  authorized  and  di- 
rected, to  pay  to  the  treasurer  of  the  asylum,  the  bills  for  clo- 
thing and  maintenance,  as  they  become  due  and  payable,  ac- 
cording to  the  by-laws  of  the  asylum,  upon  the  order  of  the 
steward  ;  and  the  supervisors  of  the  county  are  required  annually 
to  levy  and  raise  the  amount  of  such  bills,  and  such  further  sum 
as  will,  probably,  cover  all  similar  bills,  for  one  year  in  advance. 
The  county,  however,  has  the  right  to  require  any  individual, 
town,  cit}'',  or  county,  that  is  legally  liable  for  the  support  of  such 
patient,  to  reimburse  the  amount  of  the  bills,  with  interest,  from 
the  day  of  paying  the  same.     (Id.,  sec.  50.) 

Every  town  or  county  paying  for  the  support  of  a  lunatic  in 
the  asylum,  or  for  his  expenses  in  going  to  or  from  the  same,  has 
the  like  rights  and  remedies  to  recover  the  amount  of  such  pay- 
ments, with  interest  from  the  time  of  paying  each  bill,  as  if  such 
expenses  had  been  incurred  for  the  support  of  the  same,  at  other 
places,  under  existing  laws.     (1  R.  S.  815,  sec.  52.) 

It  is  provided  that  no  patient  shall  be  discharged  from  the 
asylum  without  suitable  clothing ;  and  if  it  cannot  be  otherwise 
obtained,  the  steward  is  required,  upon  the  order  of  two  mana- 
gers, to  furnish  it,  and  also  to  furnish  money  not  exceeding 
twenty  dollars,  to  defray  his  necessary  expenses  until  he  reaches 
his  friends,  or  has  an  opportunity  of  earning  a  subsistence.  (Id. 
sec.  5G.) 

6.   The  Care  of  Habitual  Drunkards. 

Whenever  tlu;  overseers  of  the  poor  of  any  town  discover  any 
person  to  be  an  habitual  drunkard,  they  must,  by  writing  under 
their  hands,  designate  and  describe  such  drunkard,  and  by  writ- 


INTERNAL  POLICE  OF  THE  STATE.  343 

ten  notice  signed  by  them,  require  every  merchant,  distiller) 
shop-keeper,  grocer,  tavern  keeper  or  other  dealer  in  spirituous 
liquors,  and  every  other  person  residing  within  the  city  or  town 
where  such  drunkard  resides,  or  in  any  other  city  or  town  near  to 
or  adjoining  such  city  or  town,  not  to  give  or  sell,  under  any  pre- 
tence, any  spirituous  liquors  to  such  drunkard.  (1  R.  S.  817, 
sec.  1.) 

DESIGNATION    OF    A    DRUNKARD. 

We,  the  overseers  of  the  poor  of  the  town  of  Norwich,  do 
hereby  designate  Israel  Putnam,  of  the  said  town,  as  an  habitual 
drunkard. 

Given  under  our  hands  this  1st  day  of  June,  1849. 

Jacob  King,      j 

TT  isr         f  Overseers. 

Henry   West,  ^ 

notice  not  to  sell  or  give  liquor  to  a  de,unkard. 

To  Mr.  Henri/  Peters : — 

You  are  hereby  informed  that  we,  the  overseers  of  the  poor  of 
the  town  of  Norwich,  have,  by  writing  under  our  hands,  this 
day  designated  Israel  Putnam,  of  the  said  town,  as  an  habitual 
drunkard  ;  and  we  do  hereby  require  you  not  to  give  or  sell, 
under  any  pretence,  any  spirituous  liquors  to  the  said  Israel 
Putnam.     Dated  June  1st,  1849. 

Jacob  King, 


XT  Aiir  /■  Overseers, 

Henry  West, 

If,  after  the  personal  service  of  such  notice,  any  such  person, 
or  any  clerk,  agent  or  member  of  the  family  of  such  person 
shall  knowingly  give  or  sell,  in  any  manner  whatever,  spirituous 
liquors  to  any  such  drunkard,  except  by  the  personal  direction 
or  on  the  written  certificate  of  some  ph^^sician,  regularly 
licensed  to  practice  according  to  the  laws  of  this  state,  stating 
that  such  liquor  is  necessary  for  the  preservation  or  recovery  of 
the  health  of  such  drunkard,  he  shall  forfeit,  for  every  offence, 
the  sum  of  ten  dollars,  for  the  use  of  the  poor  of  the  town  where 
such  drunkard  resides.     (1  R.  S.  817,  sees.  3,  4.) 

Where  the  parents  or  guardian  of  a  minor  under  sixteen 
years  of  age,  or  the  master  of  an  apprentice  or  servant,  have 
been  designated  by  the  overseers  of  the  poor  as  habitual  drunk- 


344  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

ards,  no  tavern  keeper,  grocer,  or  other  person  licensed  to  sell 
any  strong  or  spirituous  liquors  or  wines,  can  sell  any  such 
liquors  or  wines  to  any  such  minor  or  apprentice,  or  servant, 
without  the  consent  of  the  overseers  of  the  poor  of  the  city  or 
town  where  such  minor,  or  apprentice,  or  servant  resides,  under 
the  penalty  of  ten  dollars  for  every  offence,  to  be  recovered  by 
the  overseers  for  the  use  of  the  poor  of  the  town.  (1  R.  S.  818, 
sec.  5.) 

When  the  overseers  of  the  poor  have  designated  a  person  as 
an  habitual  drunkard,  he  may  contest  the  fact  of  drunkenness 
before  a  jury.  For  that  purpose,  he  must  apply  to  a  Justice  of 
the  Peace  of  his  town  for  a  venire.  Upon  such  application,  the 
Justice  is  required  to  give  immediate  notice  to  the  overseers  of 
the  time  and  place  which  he  may  fix  upon  to  try  the  question. 
He  must  also  issue  a  venire  for  a  jury. 

FORM    OF    NOTICE. 

To  the  Overseers  of  the  Poor  of  the  totvn  of  Norwich  : — 

You  are  hereby  notified  that  Israel  Putnam,  who  has  been 
designated  by  you  as  an  habitual  drunkard,  has  applied  to  me 
for  process  to  summon  a  jury,  to  try  and  determine  the  fact  of 
such  drunkenness ;  and  that  I  have  fixed  upon  the  8th  day  of 
June  instant,  at  two  o'clock  in  the  afternoon,  at  my  office  in  said 
town,  as  the  time  and  place  for  such  trial.  Dated  June  1st, 
1849. 

James  Jackson,  Justice. 

FORM    of    venire. 

Chenango  County,  ss. 

To  any  Constable  of  the  town  of  Norwich,  in  said  County. 
Greeting : — 

You  are  hereby  commanded,  in  the  name  of  the  people  of  the 
state  of  New  York,  to  summon  a  jury  of  twelve  persons,  com- 
petent to  serve  on  jnrics,  to  appear  at  my  oflice  in  Norwich 
aforesaid,  on  tlio  Sth  day  of  Jinie  instant,  at  two  o'clock  in  the 
afternoon,  to  try  the  fact  whether  Israel  Putnam,  of  the  said 
town,  is  an  haljitual  druiilcard,  he  having  been  designated  as 
such  })y  the  ovcrscMMS  of  (lie  ])oor  of  said  town  ;  and  have  there 
and  then  a  pant^i  of  the  names  of  the  jurors  you  shall  so  sum- 


INTERNAL  POLICE  OF  THE  STATE.  345 

mon,  and  this  precept.     Given  under  my  hand,  at  Norwich 
aforesaid,  June  1st,  1649. 

James  Jackson,  Justice. 

Witnesses  may  be  summoned  and  sworn,  and  their  testimony 
enforced,  in  the  same  manner  as  in  suits  in  the  Justices'  Court. 
(1  R.  S.  818,  sec.  8.) 

FORM    OF    SUBPCENA. 

Chenango  Contity,  ss. 

To  John  Doe,  Richard  Roe,  &c.,  Greeting : — 
You  are  hereby  commanded,  in  the  name  of  the  people  of  the 
state  of  New  York,  to  appear  before  me,  the  undernamed  Jus- 
tice of  the  Peace,  at  my  office  in  the  town  of  Norwich,  in  said 
county,  on  the  8th  day  of  June  instant,  at  two  o'clock  in  the 
afternoon,  to  give  evidence  touching  the  fact  of  the  habitual 
drunkenness  of  Israel  Putnam,  the  said  Putnam  having  been 
designated  by  the  overseers  of  the  poor  of  said  town  as  an  ha- 
bitual drunkard,  and  the  said  Putnam  having  demanded  a 
jury  to  try  such  alleged  fact.  Given  under  my  hand  at  Noi 
wich  aforesaid,  June  1st,  1849. 

James  Jackson,  Justice. 

The  jury  are  to  be  summoned,  returned,  and  six  balloted  for, 
as  in  suits  in  the  Justices'  Court.  The  six  drawn  must  be 
sworn,  and  sit  as  a  jury.     (Id.) 

FORM    OF    juror's    OATH. 

You  do  swear,  in  the  presence  of  Almighty  God,  that  you 
will  well  and  truly  try  the  fact  of  the  alleged  habitual  drunken- 
ness of  Israel  Putnam,  and  a  true  verdict  will  give,  according 
to  evidence. 

form  OF  witness'  oath. 

You  do  swear,  in  the  presence  of  Almighty  God,  that  the  evi- 
dence you  shall  give,  touching  the  fact  of  the  alleged  habitual 
drunkenness  of  Israel  Putnam,  shall  be  the  truth,  the  whole 
truth,  and  nothing  but  the  truth. 

The  jury  are  to  hear  the  proofs  and  allegations,  and  proceed 


346  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

in  all  respects,  as  in  trials  at  law,  to  render  their  verdict,  which 
is  to  be  entered  by  the  Justice  in  a  book,  to  be  provided  by  him 
for  that  purpose.     (1  R.  S.  818,  sec.  9.) 

If  it  be  found  by  the  verdict  that  the  person  demanding  such 
trial  is  an  habitual  drunkard,  the  Justice  must  enter  judgment 
against  him,  and  award  execution  for  the  costs  of  the  overseers 
of  the  poor  in  the  same  manner  as  in  suits  between  individuals, 
which  Justices  of  the  Peace  are  authorized  to  try.     (Id.  sec.  10.) 

FORM    OF    EXECUTION. 

Chenango  County,  ss. 

To  any  Constable  of  said  County,  Greeting  : — 
Whereas,  Israel  Putnam,  of  Norwich,  in  said  county,  was  de- 
signated and  described  by  the  overseers  of  the  poor  of  said 
town  as  an  habitual  drunkard,  and  by  the  verdict  of  a  jury  em- 
pannelled,  drawn  and  sworn  before  me,  the  undernamed  Jus-  - 
tice,  upon  the  application  of  the  said  Israel  Putnam,  it  is  found 
that  said  Putnam  is  an  habitual  drunkard  ;  whereupon  I  did  ren- 
der judgment  against  said  Putnam  for  the  costs  of  the  said  over- 
seers in  attending  the  trial,  amounting  to  the  sum  of  three  dollars. 
You  are  therefore  hereby  commanded,  in  the  name  of  the  people 
of  the  state  of  New  York,  to  levy  the  said  costs  of  the  goods 
and  chattels  of  the  [said  Israel  Putnam,  (excepting  such  goods 
and  chattels  as  are  exempt,  by  law,  from  execution,)  and  bring 
the  money  which  you  shall  collect,  in  thirty  days  from  the  date 
hereof,  before  me  at  my  office  in  Norwich,  to  render  to  the  said 
overseers.     Given  under  my  hand  at  Norwich,  June  8th,  1849. 

James  Jackson,  Justice. 

If  it  be  found  by  the  verdict  that  the  person  designated  is  not 
an  habitual  drunkard,  the  Justice  must  render  judgment  there- 
upon ;  but  execution  must  not  be  awarded  against  the  overseers 
of  the  poor  for  costs,  unless  it  appear  to  the  Justice  that  they 
did  not  act  in  good  faith,  and  had  not  reasonable  cause  to  be- 
lieve lliat  the  person  designated  was  an  habitual  drunkard.  If 
it  appear  that  they  did  act  in  good  faith,  and  had  reasonable 
cause,  (fcc,  each  party  must  pay  their  own  costs.  (1  R.  S.  819, 
sec.  12.) 

It  would  seem  proper,  that  when  the  verdict^is  in  favor  of  the 


INTERNAL  POLICE  OF  THE  STATE  347 

person  designated,  the  Justice  should  make  a  special  suggestion 
in  his  entry  of  judgment,  thus  : 

"  But  inasmuch  as  it  appears  that  the  said  overseers  of  the 
poor  acted  in  good  faith,  and  had  reasonable  cause  to  believe 
the  said  Israel  Putnam  to  be  an  habitual  drunkard — therefore, 
the  parties  respectively  must  pay  their  own  costs."     Or, 

"  But,  inasmuch  as  it  appears  that  the  said  overseers  of  the 
poor  did  not  act  in  good  faith,  and  had  not  reasonable  cause  to 
believe  the  said  Israel  Putnam  to  be  an  habitual  drunkard,  judg- 
ment is  rendered  against  said  overseers,  for  the  costs  of  said  Put- 
nam, amounting  to  the  sum  of  three  dollars." 

If  at  any  time  the  overseers  of  the  poor  shall  be  satisfied  that 
the  drunkard  has  reformed  and  become  temperate,  they  may  re- 
voke and  annul  any  such  notice  given  by  them,  or  any  of  their 
predecessors  in  office.     (Id.  sec.  14.) 

REVOCATION    OF    NOTICE. 

Whereas,  we,  the  overseers  of  the  poor  of  the  town  of  Nor- 
wich, [or,  "  whereas,  A.  B.  and  C  D.,  late  overseers  of  the  poor 
of  the  town  of  Norwich,"]  did  designate  Israel  Putnam,  of  the 
said  town,  as  an  habitual  drunkard,  and  did  give  notice  prohib- 
iting the  selling  any  spirituous  liquors  to  the  said  Putnam.  And, 
whereas,  we  are  satisfied  that  the  said  Putnam  has  become  tem- 
perate :  Now,  therefore,  we  do  hereby  revoke  the  said  designa- 
tion and  notice.  Given  under  our  hands,  this  1st  day  of  Octo- 
ber, 1849. 

Jacob  King,      I  r\ 

,,_   '      >  Overseers. 
Henry  West,  ) 


7.   Of  Profane  Cursing  and  iSwearing. 

The  penalty  for  profane  cursing  or  swearing,  is  one  dollar  for 
each  offence.     (1  R.  S.  846,  sec.  50.) 

No  prosecution  for  this  offence  can  be  maintained,  unless  the 
same  is  instituted  either  by  the  actual  issuing  of  process,  or  the 
appearance  of  the  offender  to  answer  the  complaint  within 
twenty  days  next  after  the  offence  is  committed.  (Id.  850,  sec.  72.) 

There  are  two  cases  in  which  a  Justice  of  the  Peace,  mayor, 
recorder,  or  alderman  of  any  city,  are  authorized  to  convict  for. 


348  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

this  offence  upon  their  own  hearing,  without  other  proof :  ( L  R 
S.  846,  sees.  50,  51.) 

1.  When  the  offence  is  committed  in  the  presence  and  hear- 
ing of  the  magistrate,  while  he  is  holding  a  court ;  and 

2.  When  committed  at  any  other  time,  in  his  presence  and 
hearing,  under  such  circumstances,  as,  in  his  opinion  to  amount 
to  a  gross  violation  of  public  decency. 

In  other  cases,  a  summary  inquiry  must  be  had,  and  proofs 
exhibited. 

Whenever  complaint  is  made  to  the  magistrate,  of  the  com- 
mission of  this  offence,  he  must  cause  the  offender  to  be  brought 
before  him.     (Sec.  71.) 

FORM    OF    COMPLAINT. 

Chenango  County^  ss. — John  Smith,  of  Oxford,  in  said  county, 

being  duly  sworn,  makes  oath   and  complains,  before  David 

Long,  one  of  the  Justices  of  the  Peace  of  said  county,  that  John 

Doe,  on  the  first  day  of  September,  instant,  at  Oxford,  aforesaid, 

did,  in  the  presence  and  hearing  of  the  said  Smith,  profanely 

curse,  [or,  ''  profanely  swear,"]  contrary  to  the  form  and  effect  of 

the  statute,  in  such  case  made  and  provided,  that  is  to  say,  the 

said  John  Doe,  did,  then  and  there  openly  say  and  declare — 

[here  set  forth  the  words  spoke?i.] 

John  Smith. 

Subscribed  and  sworn  before  me,  this 

10th  day  of  September,  1849. 

David  Long,  Justice. 

FORM    of    warrant. 

Chenango  County,  ss. 

To  any  Constable  of  said  County,  Greeting  : 
Whereas,  John  Smith,  of  Oxford,  in  said  county,  has  this  day 
made  complaint  on  oath,  before  me,  the  undernamed  Justice  of 
the  Peace  of  Oxford,  aforesaid,  that  John  Doe,  (fcc,  [here  set 
forth  the  comjdaint.^  You  are,  therefore,  hereby  commanded, 
in  the  name  of  the  people  of  the  State  of  New  York,  forthwith 
to  apitrohcnd  the  said  John  Doe,  and  bring  him  before  me,  at 
my  office  in  Oxford,  aforesaid,  to  answer  to  said  complaint,  and 
to  be  dealt  with  according  to  law.  Given  under  my  hand,  at 
Oxford,  aforesaid,  September  10th,  1849. 

David  Long,  Justice. 


INTERNAL  POLICE  OF  THE  STATE.  349 

If  the  offender  be  found  guilty,  the  Justice  must  make  and 
sign  a  record  of  his  conviction.  The  recital  in  the  record,  will, 
of  course  vary  in  different  cases,  and  will  be  materially  different 
when  the  conviction  is  upon  the  hearing  of  the  Justice,  from  the 
case  where  the  proceeding  is  by  complaint  and  proofs.  A  form 
in  each  case,  will  therefore  be  proposed. 

RECORD  OF  CONVICTION,  WHERE  THE  OFFENCE  IS  COMMITTED 
IN  THE  PRESENCE  OF  THE  JUSTICE,  WHILE  HOLDING  A 
COURT. 

Chenango  County^  ss. — Be  it  remembered,  that  on  this  tenth 
day  of  September,  one  thousand  eight  hundred  and  forty  nine,  a 
court  was  duly  held,  by  and  before  me,  the  undernamed  Justice 
of  the  Peace  of  Oxford,  in  said  county,  at  Oxford,  aforesaid,  pur- 
suant to  statute,  in  such  case  made  and  provided,  for  the  trial  of 
a  certain  action  on  contract,  wherein  Richard  Roe  was  plaintiff, 
and  John  Stiles,  defendant ;  and  while  I  was  so  holding  the  said 
court,  the  said  Richard  Roe,  did  then  and  there,  in  my  presence 
and  hearing,  profanely  swear  one  profane  oath,  contrary  to  the 
form  and  effect  of  the  statute,  in  such  case  made  and  provided, 
that  is  to  say,  the  said  Richard  Roe  did  utter  and  declare,  the 
words  following,  [here  state  the  ivords  constituting  the  offence  ;] 
whereupon  I  did  immediately  convict  the  said  Richard  Roe,  of 
the  said  offence,  and  he  is  convicted  thereof;  whereby,  and 
in  pursuance  of  the  statute  in  such  case  made  and  provided, 
the  said  Richard  Roe  is  b^i  me  adjudged  to  have  forfeited,  and  to 
pay  for  his  said  offence,  the  sum  of  one  dollar.  Given  under 
my  hand  at  Oxford,  September  10th,  1840. 

David  Long,  Justice. 

RECORD  OF  conviction,  WHERE  THE  OFFENCE  IS  COMMIT- 
TED IN  PRESENCE  OF  THE  JUSTICE  NOT  HOLDING  A  COURT  ; 
BUT  UNDER  CIRCUMSTANCES  AMOUNTING  TO  A  GROSS  VIO- 
LATION   OF    PUBLIC    DECENCY, 

Chenango  County,  ss. — Be  it  remembered,  that  on  this  first 
day  of  September,  one  thousand  eight  hundred  and  forty-nine, 
at  Oxford,  in  said  counter,  John  Stone  did,  in  the  presence  and 
hearing  of  me,  the  undernamed  Justice  of  the  Peace  of  the  said 
town,  profanely  swear  one  profane  oath,  contrary  to  the  form 
and  effect  of  the  statute,  in  such  case  made  and  provided,  that 


350  DUTIES  OF  JUSTICES  OF   THE  PEACE. 

is  to  say,  the  said  John  Stone  did  then  and  there  utter  and  de- 
clare the  words  following  ;  [here  state  the  ivords  ;]  and  inasmuch 
as  the  said  John  Stone  did  so  profanely  swear,  in  the  presence 
and  hearing  of  divers  citizens  of  this  state,  and  under  such  cir- 
cumstances as,  in  my  opinion,  to  amount  to  a  gross  violation  of 
public  decency,  I  did  thereupon,  and  without  other  proof,  and  in 
pursuance  of  the  statute,  in  such  case  made  and  provided,  con- 
vict the  said  John  Stone,  and  he  is  convicted  of  the  said  offence  ; 
whereby,  &c.,  [as  in  the  p7'ecedmg  form.] 

RECORD    OF    COVICTION    ON    A    COMPLAINT. 

Chejiango  County^  ss. — Be  it  remembered,  that  on  the  10th 
day  of  September,  instant,  at  Oxford,  in  said  county,  John  Smith 
personally  appeared  before  me,  the  undernamed  Justice  of  the 
Peace  of  Oxford,  aforesaid,  and  made  complaint  on  oath,  that 
John  Doe,  &c.,  [Aere  state  the  complaint y]  upon  Avhich  com- 
plaint I  issued  my  warrant,  to  cause  the  said  John  Doe  to  be 
brouglit  before  me,  to  answer  to  said  complaint.     And  now,  at 
this  day,  to  wit,  the  12th  day  of  September,  1849,  at  Oxford, 
aforesaid,  the  said  warrant  is  returned,  and  the  said  John  Doe  is 
brought  before  me  ;  and,  I,  having  in  the  presence  of  said  John 
Doe  proceeded  summarily  to  inquire  into  the  facts,  and  hear  the 
proofs  and  allegations  to  me  submitted,  touching  said  complaint ; 
and  it  appearing  to  me,  upon  competent  testimony  before  me 
given,  (and  the  said  John  Doe  not  having  shown  any  sufficient 
matter  in  his  defence  thereof,)  that  the  said  John  Doe  is  guilty 
of  the  premises  in  said  complaint  alleged — the  said  John  Doe 
is  therefore,  in  pursuance  of  the  statute,  in  such  case  made  and 
provided,  duly  convicted  before  me,  of  profanely  swearing  one 
profane  oath  ;  whereby,  (fcc,  [as  in  the  foregoing  form.] 

A  person  may  be  convicted  for  several  offences  at  the  same 
time,  for  each  of  which  lie  will  incur  the  forfeiture  of  one  dollar. 
If  the  offender  do  not  forthwith  pay  the  penalties  incurred  with 
the  costs  ;  or  give  security  for  their  payment,  he  must  be  com- 
mitted to  jail  for  every  oflcnco,  or  for  any  number  of  offences, 
whereof  he  was  convicted  at  one  and  the  same  time,  for  not  less 
than  one  day,  nor  more  tlian  three  days,  there  to  be  confined  in 
a  room,  se])aratc  from  all  otlicr  persons.     (1  R.  S.  847,  sec.  52.) 


INTERNAL  POLICE  OF  THE  STATE.  351 

SECURITY    FOR    PAYMENT    OF    PENALTY    AND    COSTS. 

Chenango  County^  ss. — Whereas  John  Doe  has  this  day 
been  convicted  before  David  Long,  Esquire,  a  Justice  of  the 
Peace  of  the  said  county,  of  swearing  one  profane  oath  at  the 
town  of  Oxford  in  said  county,  whereby  ho  has  forfeited  the 
sum  of  one  dollar  ;  and  the  said  Justice  has  settled  and  ascer- 
tained the  costs  of  the  said  conviction  at  the  sum  of  two  dollars 
and  seventy-five  cents  :  We,  the  said  John  Doe  and  Henry 
Peters  as  his  surety,  do  hereby  engage  to  pay  the  said  penalty 
and  costs  to  the  overseers  of  the  poor  of  the  said  town,  within 
six  days  from  the  date  hereof. 

Witness  our  hands  and  seals,  the  12th  day  of  September, 
1849.  John  Doe,  [l.  s.] 

Henry  Peters,  [l.  s.] 

commitment  for  non-payment  of  penalty  AND  costs. 

Chenango  County^  ss  : 

To  any  Constable  of  said  County,  Greeting  : 

Whereas  John  Doe  was  this  day  duly  convicted  before  me, 
the  undernamed  Justice  of  the  Peace  of  Oxford  in  said  county, 
of  the  offence  of  profanely  swearing  one  profane  oath,  contrary 
to  the  form  and  effect  of  the  statute  in  such  case  made  and  pro- 
vided, whereby  he  was  by  me  adjudged  to  have  forfeited,  and 
to  pay  the  sum  of  one  dollar,  and  became  also  liable  to  pay  the 
costs  of  his  prosecution  and  conviction  therefor,  amounting  to 
the  sum  of  two  dollars  and  seventy-five  cents ;  and  whereas 
the  said  John  Doe  has  not  paid  the  said  forfeiture  and  costs, 
nor  secured  the  payment  thereof,  as  by  law  required,  and  I  have 
made  and  signed  my  record  of  said  conviction  :  You  are, 
therefore,  hereby  commanded,  in  the  name  of  the  people  of  the 
state  of  New  York,  forthwith  to  take  the  said  John  Doe,  and 
him  convey  to  the  common  jail  of  said  county,  the  keeper 
whereof  is  required  to  confine  him  in  said  jail  for  the  term  of 
two  days,  in  a  room  separate  from  all  other  prisoners. 

Given  under  my  hand  at  Oxford,  September  12th,  1849. 

David  Long,  Justice. 

The  costs  to  be  charged  the  same  as  in  civil  cases,  and  to 
an  amount  not  exceeding  five  dollars,  must  be  paid  by  the 
party  offending,  over  and  above  the  penalties  incurred  ;  but  in 


352  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

case  of  the  imprisonment  of  the  offenderj  no  charges  or  fees 
are  to  be  collected.     (1  R.  S.  851,  sec.  75.) 

Within  thirty  days  after  the  conviction,  the  Justice  must 
cause  to  be  filed  in  the  county  clerk's  office,  a  certificate  of  such 
conviction,  briefly  stating  the  offence  charged,  the  conviction 
and  judgment  thereon,  and,  if  any  fine  has  been  collected,  the 
amount  thereof,  and  to  whom  paid.     (Id.  sec.  74.) 

FORM    OF    CERTIFICATE. 

Town  of  Oxford,  ss. — I  certify,  that  on  the  12th  day  of  Sep- 
tember, instant,  at  Oxford  aforesaid,  John  Doe  was  duly  con- 
victed before  me,  the  undernamed  Justice  of  the  Peace,  of 
Oxford  aforesaid,  of  the  offence  of  profanely  swearing  one  pro- 
fane oath,  contrary  to  the  form  and  effect  of  the  statute,  in  such 
case  made  and  provided ;  and  upon  such  conviction,  the  said 
John  Doe  was  by  me  adjudged  to  have  forfeited  and  to  pay  the 
sum  of  one  dollar  penalty.  And  I  further  certify  that  imme- 
diately upon  said  conviction,  the  said  John  Doe  paid  to  me  the 
sum  so  forfeited.  [Or,  "  I  certify  that  the  sum  so  forfeited  has 
not  been  collected,  the  said  John  Doe  having  been  imprisoned, 
for  the  non-payment  thereof"] 

Dated  September  20th,  1849. 

David  Long,  Justice. 

8.  Of  the  Disturbance  of  Religious  Meetings. 

To  wilfully  disturb,  interrupt  or  disquiet,  any  assemblage  of 
people,  met  for  religious  worship,  is  an  offence  punishable  by 
the  forfeiture  of  a  sum  not  exceeding  twenty-five  dollars,  and 
the  costs  of  the  prosecution  and  conviction.  (1  R.  S.  847,  sees. 
53,  54.) 

The  statute  specifies  the  acts  which  are  to  be  considered  as 
necessary  to  constitute  the  offence.  They  are — profane  dis- 
course ;  rude  and  indecent  behavior ;  making  a  noise,  either 
within  the  place  of  worship,  or  so  near  it  as  to  disturb  the  order 
and  solemnity  of  the  meeting  ;  exposing  to  sale  or  gift  any 
ardent  or  distilled  liquors,  within  two  miles  of  the  place  of  as- 
semblage ;  keeping  open  any  huckster  shop  in  any  other  place, 
inn,  store,  or  grocery,  than  such  as  shall  have  been  duly  licen- 
sed, and  where  the  person  keeping  the  same  usually  resides,  or 


INTERNAL  POLICE  OF  THE  STATE.  353 

carries  on  business  ;  exhibiting  within  such  distance,  any 
shows  or  plays,  unless  the  same  shall  have  been  duly  licensed 
by  proper  authority  ;  promoting,  aiding,  or  being  engaged  within 
that  distance,  in  racing  any  animals,  or  in  gaming  of  any  de- 
scription ;  or  within  that  distance,  obstructing  the  free  passage 
of  a  highway  to  the  place  of  worship.     (Id.) 

If  the  offence  is  committed  in  the  presence  of  any  judge, 
mayor,  recorder,  alderman,  or  Justice  of  the  Peace,  the  magis- 
trate may  order  the  offender  into  the  custody  of  any  sheriff, 
deputy,  coroner,  marshal,  constable,  or  other  peace  officer,  or 
any  official  member  of  the  church,  or  society  assembled,  for 
safe  keeping,  until  he  shall  be  let  to  bail,  or  tried  for  the  offence. 
And  either  of  the  above  mentioned  officers,  who  is  present  at 
the  meeting,  may  apprehend  the  offender,  and  take  him  before 
a  Justice,  or  other  magistrate  authorized  to  convict,  to  be  pro- 
ceeded against  according  to  law.     (1  R.  S.  847,  sees.  55,  56.) 

FORM    OP    COMPLAINT. 

Tioga  County^  ss. — Henry  Brown  of  Owego,  in  said  county, 
makes  oath  and  complains,  before  James  Bush,  one  of  the  Jus- 
tices of  the  Peace  of  said  county,  that  on  the  first  day  of  June, 
instant,  at  Owego  aforesaid,  there  was  an  assemblage  of  people 
met  for  religious  worship,  and  that  John  Smith  of  Owego 
aforesaid,  who  was  present  at  said  meeting,  did  disturb  the 
people  so  assembled,  by  laughing,  making  a  noise,  and  other 
rude  and  indecent  behavior,  within  the  place  of  worship,  \or  as 
the  facts  may  6e,]  and  that  said  Henry  Brown  believes  that  said 
John  Smith  did  wilfully  make  such  disturbance. 

Henry  Brown. 
Subscribed  and  sworn  before  me,  this  2d 

day  of  June,  1849. 

James  Bush,  Justice. 

FORM    OF    WARRANT. 

Tioga  County^  ss : 

To  any  Constable  of  said  County,  Greeting  : 
Whereas,  Henry  Brown  of  Owego,  in  said  county,  has  this 
day  made  complaint  on  oath,  before  me,  the  undernamed  J  ustice 
of  the  Peace  of  said  county,  that,  &,c.,  [here  set  forth  the  com- 
plaint.]    You  are,  therefore,  hereby  commanded,  in  the  name 

23 


354  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

of  the  people  of  the  state  of  New  York,  forthwith  to  apprehend 
the  said  John  Smith,  and  bring  him  before  me,  at  Owego  afore- 
said, to  answer  to  said  complaint,  and  to  be  proceeded  against 
according  to  law. 
Given  under  my  hand  at  Owego  aforesaid,  June  2d,  1849. 

James  Bush,  Justice. 

*"  When  the  offence  is  committed  in  the  presence  of  the  officer, 
he  is  authorized  to  cause  the  offender  to  be  brought  before  him, 
and  proceed  to  inquire  into  the  facts.  Under  this  provision,  the 
officer  may  probably,  immediately  upon  the  commission  of  the 
offence,  cause  the  offender  to  be  brought  before  him  by  a  verbal 
order ;  but  if  the  offender  has  departed,  a  warrant  should  be 
issued. 

WARRANT    FOR    OFFENCE    IN    JUSTICE'S    PRESENCE. 

Tioga  County,  ss.      -  . 

To  any  Constable  of  said  County,  Greeting  : 

Whereas,  on  the  1st  day  of  June,  instant,  at  the  town  of 
Owego,  in  the  said  county,  John  Smith  did,  in  my  presence,  wil- 
fully disturb  and  interrupt  an  assemblage  of  people,  met  for  reli- 
gious worship.  [Set  forth  the  manner  of  the  disturbance.]  You 
are,  <fec.,  \_as  in  f>receding  formal 

Any  person  complained  of  for  ^a  violation  of  the  statute,  in 
relation  to  the  disturbance  of  religious  meetings,  before  the  court 
shall  proceed  to  investigate  the  merits  of  the  cause,  may  de- 
mand of  such  court,  that  he  be  tried  by  a  jury.  Upon  such  de- 
mand, it  is  the  duty  of  the  court,  to  issue  a  venire  to  any  con- 
stable of  the  county,  or  marshal  of  the  city,  where  the  offeiidcr 
is  to  be  tried,  commanding  such  officer  to  summon  the  same 
number  of  jurors,  and  in  the  same  manner,  as  is  provided  for 
the  summoning  of  jurors  before  the  Court  of  Sessions.  The 
court  are  to  proceed  to  impannel  a  jury  for  the  trial,  in  the  same 
manner,  and  are  subject  to  all  the  rules  and  regulations  pre- 
scribed in  the  acts  providing  for  trials  by  jury,  in  Courts  of 
Sessions.     (1  R.  S.  848,  sec.  58.) 


INTERNAL  POLICE  OF  THE  STATE,  355 

FORM    OF    VENIRE. 

Tioga  County,  ss. 

To  any  Constable  of  said  County,  Greeting  : 

You  are  hereby  commanded  to  summon  twelve  good  and  law- 
ful men,  qualified  to  serve  as  jurors,  and  not  exempt  from  such 
service,  by  law,  and  who  are  in  no  wise  of  kin  to  John  Smith, 
to  be  and  appear  before  me,  James  Bush,  a  Justice  of  the  Peace 
of  the  said  county,  on  the  4th  day  of  June,  instant,  at  two 
o'clock  in  the  afternoon,  at  my  office,  in  the  town  of  Owego,  to 
make  a  jury  for  the  trial  of  the  said  John  Smith,  for  an  alleged 
violation  of  article  seventh,  title  eighth,  chapter  twentieth,  part 
first,  of  the  Revised  Statutes,  entitled,  "  Of  the  disturbance  of 
religious  meetings."  And  have  you,  then  and  there,  a  panel  of 
the  jurors  and  this  precept.  Given  under  my  hand,  at  Owego 
aforesaid,  the  2d  day  of  June,  1849, 

James  Bush,  Justice. 

When  the  off"ender  is  brought  before  the  Justice,  either  upon 
a  warrant,  or  otherwise,  the  magistrate  must  summarily  inquire 
into  the  facts,  hearing  the  proofs  which  may  be  off'ered ;  and 
if  he  be  found  guilty,  must  determine  on  the  penalty  to  be 
imposed,  not  exceeding  twenty-five  dollars,  and  make  and  sign 
a  record  of  conviction,  before  issuing  any  process  to  enforce  the 
same. 

FORM    OF    RECORD    OF    CONVICTION,    WHEN    THE    PROSECUTION 
'IS    BY    COMPLAINT    AND    WARRANT. 

Tioga  County^  ss. — Be  it  remembered,  that  on  the  2d  day  of 
June,  instant,  at  Owego,  in  said  county,  Henry  Brown,  of  Owe- 
go, aforesaid,  personally  appeared  before  me,  the  undernamed 
Justice  of  the  Peace  of  said  county,  and  being  by  me  duly 
sworn,  made  oath,  and  complained,  that,  (fee, — [here  set  forth 
the  complaint.^  Whereupon,  I  did  issue  my  warrant  to  cause 
the  said  John  Smith  to  appear  before  me,  to  the  intent,  that  I 
might  inquire  into  the  facts  touching  said  complaint,  as  by  law 
required.  And  now  at  this  day,  to  wit,  on  the  3d  day  of  June. 
1849,  the  said  John  Smith  is  brought,  and  now  appears  before 
me,  at  Owego,  aforesaid,  and  I  have  proceeded,  in  the  presence 
of  the  said  John  Smith,  to  inquire  summarily  into  the  facts,  &c. 
— and  inasmuch  as  it  appears  to  me,  upon  said  inquiry,  and 


356  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

by  the  confession  of  the  said  John  Smith,  now  before  me  madt?, 
that  the  matters  set  forth  in  the  said  complaint,  are  true,  [or, 
"and  by  competent  testimony,  that  the  matters  set  forth  in  said 
complaint,  are  true  ;"j  the  said  John  Smith  is,  therefore,  con- 
victed before  me  of  said  offence.  And  I  do  adjudge  and  deter- 
mine, that  said  John  Smith  pay,  as  a  forfeiture  for  his  said  of- 
fence, the  sum  of  ten  dollars,  for  the  benefit  of  the  poor  of 
said  county.  Witness  my  hand,  at  Owego,  aforesaid,  June  3d, 
1849. 

James  Bush,  Justice. 

The  Justice  should  then  ascertain  the  amount  of  the  costs,  as 
in  civil  cases ;  and  if  the  offender  do  not  forthwith  pay  the  pe- 
nalty and  costs,  or  give  security,  satisfactory  to  the  Justice,  to 
pay  the  same  in  twenty  days,  he  must  be  committed.  (1  R.  S. 
848,  sec.  57.)  The  statute  does  not  prescribe  the  kind  of  secu- 
rity to  be  required.  I  propose  the  following  form,  deeming  it 
sufficient  and  suitable : 

FORM    OF    SECURITY. 

Tioga  County,  ss. — Whereas,  John  Smith,  of  Owego,  in 
said  county,  has  been  this  day  convicted,  before  James  Bush, 
one  of  the  Justices  of  the  Peace  of  said  county,  of  the  offence  of 
wilfully  disturbing  an  assemblage  of  people,  lately  met  in  said 
town  for  religious  worship,  contrary  to  the  form  and  effect  of 
the  statute,  in  such  case  made  and  provided,  as  by  the  record  of 
such  conviction,  made  and  signed  by  said  Justice,  and  remain- 
ing before  him,  will  more  fully  appear  ;  and  upon  said  convic- 
tion, the  said  Justice  did  adjudge  and  determine,  that  the  said 
John  Smith  pay,  as  a  forfeiture  for  his  said  offence,  the  sum  of 
ten  dollars,  for  the  benefit  of  the  poor  of  said  county;  and  the 
said  Justice  did  further  ascertain  the  cost  of  prosecution  and 
conviction,  to  amount  to  the  sum  of  four  dollars.  And  wherea.*? 
the  said  John  Smith,  being  unable  forthwith  to  pay  said  penal- 
ty and  costs,  I,  the  undernamed  Richard  Roe,  have,  at  the  re- 
quest of  the  said  John  Sniith,  consented  to  become  his  security 
for  the  payment  of  the  same.  I  do,  therefore,  in  consideration 
of  the  premises,  and  in  compliance  with  the  provisions  of  the 
statute,  in  such  case  made  and  provided,  promise  and  engage,  to 
and  with,  the  superintendents  of  tfie  poor  of  the  county  of  Tio- 


INTERNAL  POLICE  OF  THE  STATE.  357 

ga,  that  said  John  Smith  shall  pa)^  the  said  penalty  and  costs, 
within  twenty  days  hereafter.     Dated  June  3d,  1849. 

Richard  Roe. 
Executed  in  presence  of,  and  the 
security  approved  by  me, 

James  Bush,  Justice. 

if  neither  payment  be  made,  nor  security  given,  the  Jus- 
tice is  required  to  commit  the  offender  to  the  common  jail, 
until  the  same  be  paid,  or  for  such  term,  not  exceeding  thir- 
ty days,  as  shall  be  specified  in  the  warrant.  (1  R.  S.  848, 
sec.  57.) 

FORM    OF    WARRANT    TO   COMMIT. 

Tioga  County^  ss. 

To  any  Constable  of  said  County,  Greeting  : 

Whereas,  John  Smith,  of  Owego,  in  said  county,  has  been 
this  day  convicted  before  me,  the  undernamed  Justice  of  the 
Peace  of  said  county,  of  the  offence  of  wilfully  disturbing  an  as- 
semblage of  people,  lately  met  in  Owego,  aforesaid,  for  reli- 
gious worship,  contrary  to  the  form  and  effect  of  the  statute,  in 
such  case  made  and  provided,  as  by  my  record  of  such  convic- 
tion, by  me  made  and  signed,  will  more  fully  appear ;  and  upon 
such  conviction,  I  did  adjudge,  that  said  John  Smith  had  forfei- 
ted, for  his  said  offence,  the  sum  of  ten  dollars,  for  the  benefit 
of  the  poor  of 'said  county,  whereby  the  said  John  Smith  became 
liable  to  pay  the  said  penalty,  together  with  the  costs  of  his  pro- 
secution and  conviction,  which  costs  are  ascertained,  by  me,  to 
amount  to  the  sum  of  four  dollars.  And  whereas,  the  said  John 
Smith  has  neglected,  either  to  pay  the  said  penally  and  costs,  or 
to  give  security  for  the  payment  thereof,  as  by  law  required  : — 
You  are,  therefore,  hereby  commanded,  to  take  the  said  John 
Smith,  and  him  convey  to  the  common  jail  of  said  county,  the 
keeper  whereof  is  hereby  required  to  receive  and  detain  the  said 
John  Smith  in  custody,  in  said  jail,  until  the  said  penalty  and 
costs  are  paid  ;  but  in  case  of  non-payment  thereof,  the  said  John 
Smith  is  to  be  discharged  from  his  imprisonment  for  the  cause 
aforesaid,  upon  the  expiration  of  the  term  of  ten  days,  from  and 
after  the  date  thereof.  Given  under  my  hand,  at  Owego,  afore- 
said, June  3d,  1849. 

James  Bush,  Justice. 


358  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

The  Justice  must  cause  a  certificate  to  be  filed  in  the  county- 
clerk's  office,  within  thirty  days  after,  similar  to  the  one  required 
on  conviction  for  profane  swearing. 

No  person  shall  wilfully  disturb,  Interrupt,  or  disquiet  any  as- 
semblage of  persons,  met  at  any  school  district,  with  the  assent 
of  the  trustees  of  the  school  district,  for  the  purpose  of  receiving 
instruction  in  any  of  the  branches  of  education  usually  taught  in 
the  common  schools  of  this  state,  or  in  the  science  of  music. 
(1  R.  S.  848,  sec.  60.) 

Whoever  shall  violate  the  provisions  of  the  foregoing  section, 
may  be  tried  before  any  Justice  of  the  Peace  of  the  county,  or 
mayor,  alderman,  recorder,  or  other  magistrate  of  any  city  where 
the  offence  shall  be  committed  ;  and  upon  conviction,  shall  for- 
feit a  sum  not  exceeding  twenty-five  dollars,  for  the  use  and  be- 
nefit of  the  school  district,  in  which  such  offence  shall  be  com- 
mitted.    (1  R.  S.  848,  sec,  61.) 

It  shall  be  the  duty  of  the  trustees  of  any  school  district  in 
which  any  such  offence  shall  be  committed,  to  prosecute  such 
oflender  before  any  officer  having  cognizance  of  such  offence. 
(Id.  62.) 

If  any  person  convicted  of  the  offence  herein  prohibited,  shall 
not  immediately  pay  the  penalty  incurred,  Avith  the  costs  of  the 
conviction,  or  give  security,  to  the  satisfaction  of  the  officer  be- 
fore whom  such  conviction  shall  be  had,  for  the  payment  of  the 
said  penalty  and  costs,  within  twenty  days  thereafter,  he  shall 
be  committed  by  warrant  to  the  common  jail  of  the  county  until 
tlie  same  be  paid,  or  for  such  term,  not  exceeding  thirty  days,  as 
shall  be  specified  in  such  warrant.     (Id.  63.) 

It  shall  and  may  be  lawful  for  any  person  who  may  be  com- 
jjlaincd  of  for  a  violation  of  the  provisions  of  this  act,  to  demand 
of  such  magistrate  that  he  may  be  tried  by  a  jury.  Upon  such 
demand,  it  shall  be  the  duty  of  such  officer  to  issue  a  venire  to 
the  proper  officer,  commanding  him  to  summon  the  same  num- 
ber of  jurors,  and  in  the  same  manner ;  and  the  said,  court  shall 
proceed  to  impannel  a  jury  for  the  trial  of  said  cause  in  the  same 
manner,  and  subject  to  all  the  rules  and  regulations  proscribed 
in  the  act  providing  for  trials  by  jury  in  courts  of  Sessions.  (Id. ' 
64.) 

9.    Of  Uie  Observance  of  Sunday. 
What  acts  arc  to  be  deemed  an  offence,  if  done  on  the  first 


INTERNAL  POLICE  OF  THE  STATE.  359 

day  of  the  week,  called  Sunday,  are  recited  in  the  statute  as 
follows :  shooting,  hunting,  fishing,  sporting,  playing,  horse- 
racing,  gaming,  frequenting  of  tippling  houses,  or  any  unlawful 
exercises  or  pastimes ;  traveling,  unless  in  cases  of  charity  or 
necessity,  or  in  going  to  or  returning  from  some  church  or  place 
of  worship  within  the  distance  of  twenty  miles,  or  in  going  for 
medical  aid  or  for  medicines,  and  returning,  or  in  visiting  the 
sick  and  returning,  or  in  carrying  the  mail  of  the  United  States, 
or  in  going  express  by  order  of  some  public  officer,  or  in  remo- 
ving a  family  or  household  furniture,  when  such  removal  was 
commenced  on  some  other  day ;  servile  laboring  or  working, 
excepting  works  of  necessity  and  charity,  unless  done  by  a  per- 
son who  uniformly  keeps  Saturday  as  holy  time,  and  does  not 
work  on  that  day,  and  whose  labor  on  Sunday  shall  not  disturb 
others  in  their  observance  of  the  day  as  holy  time.  (1  R.  S. 
849,  sec.  66.) 

Persons  of  the  age  of  fourteen  years,  offending  against  the 
provisions  of  the  foregoing  section,  forfeit  one  dollar  for  each 
offence.     (Id. ) 

The  statute  prohibits  the  exposing  to  sale  of  any  wares,  mer- 
chandise, fruit,  herbs,  goods  or  chattels  on  Sunday,  except 
meats,  milk  and  fish,  which  may  be  sold  before  nine  o'clock  in 
the  morning.  The  articles  so  exposed  to  sale  will  be  forfeited 
to  the  use  of  the  poor,  and  may  be  seized  by  virtue  of  a  warrant 
for  that  purpose,  which  any  Justice  of  the  Peace  of  the  county, 
or  mayor,  recorder  or  aldermen  of  the  city,  is  authorized  to  issue 
upon  a  conviction  of  the  offender.  When  seized,  they  must  be 
sold,  on  one  day's  notice  being  given,  and  the  proceeds  must  be 
paid  to  the  overseers  of  the  poor  of  the  town  or  city.  (Id.  sec. 
67.) 

The  statute  also  prohibits  every  keeper  of  an  inn  or  tavern, 
or  of  an  ale  house,  porter  house  or  grocery,  and  all  other  persons 
authorized  to  retail  strong  or  spirituous  liquors,  from  selling  or 
disposing  on  Sunday  of  any  ale,  porter,  strong  or  spirituous 
liquors,  except  to  lodgers  in  any  such  inn  or  tavern,  or  to  per- 
sons actually  and  lawfully  travelling  on  that  day.  The  for- 
feiture for  this  offence  is  two  dollars  and  fifty  cents.     (Sec.  68.) 

If  any  of  the  offences  above  mentioned  are  committed  in  the 
presence  of  the  magistrate,  he  may  issue  his  warrant  against  the 
offender  without  a  complaint.  In  other  cases,  prosecution  is 
instituted  by  complaint. 


360  DUTIES  OF  JUSTICES  OF  THE  PEACE. 


FORM    OF    COMPLAINT. 

Tioga  County,  ss. — John  Doe,  of  Owego,  in  said  county,  be- 
ing duly  sworn,  makes  oath  and  complains,  before  James  Bush, 
one  of  the  Justices  of  the  Peace  of  said  county,  that  John 
Smith,  who,  as  said  John  Doe  believes,  is  of  the  age  of  fourteen 
years  and  upwards,  was,  on  the  3d  day  of  June  instant,  (being 
the  first  day  of  the  week,  called  Sunday,)  personally  engaged 
at  Owego  aforesaid,  in  fishing,  [or  other  offence  as  the  case  may 
6e,J  contrary  to  the  statute  in  such  case  made  and  provided. 

John  Doe. 
Subscribed  and  sworn  before  me, 

June  4th,  1849. 

James  Bush,  Justice. 

If  the  complaint  be  for  any  of  the  other  offences  specified,  the 
foregoing  form  can  be  readily  varied  according  to  the  circum- 
stances of  each  case. 

form  of  warrant. 

Tioga  County^  ss. 

To  any  Constable  of  said  County,  Greeting : — 
Whereas,  John  Doe,  of  Owego,  in  said  county,  has  this  day 
made  complaint  on  oath,  before  me,  the  undernamed  Justice  of 
the  Peace  of  said  county,  that  John  Smith,  (fee,  [here  set  forth 
the  co7nplai7it.]  You  are,  therefore,  hereby  commanded,  in  the 
name  of  the  people  of  the  State  of  New  York,  to  apprehend  the 
said  John  Smith,  and  him  bring  before  me,  the  said  Justice,  at 
Owego  aforesaid,  to  answer  to  said  complaint,  and  to  be  dealt 
with  in  the  premises  as  the  law  requires.  Given  under  my 
hand,  at  Owego,  June  4,  1849. 

James  Bush,  Justice. 

When  the  offender  is  brought  before  the  Justice,  he  must  pro- 
ceed to  inquire  summarily  into  the  focts,  and  hear  the  proofs 
offered,  <fcc.  ;  and  if  lie  find  the  person  charged  guilty,  must 
make  and  sign  a  record  of  his  conviction,  before  issuing  process 
to  enforce  the  same. 

FORM    OF    RECORD. 

Tioga  Coujity,  ss.~Uc  it  remembered  that  on  the  4lh  day  of 


INTERNAL  POLICE  OF  THE  STATE.  261 

June  instant,  at  Owego,  in  said  county,  personally  appeared  be- 
fore me,  the  undernamed  Justice  of  the  Peace  of  said  county, 
John  Doe,  of  Owego  aforesaid,  who,  being  by  me  duly  sworn, 
made  oath  and  complained  that  John  Smith,  (fcc,  [as  in  the 
complaint.]  Upon  which  complaint,  I  did  issue  my  warrant  to 
apprehend  the  said  John  Smith,  and  bring  him  before  me,  to 
answer  to  said  complaint,  <fcc.  And  now  at  this  day,  to  wit,  on 
the  5th  day  of  June,  1849,  at  Owego  aforesaid,  the  said  warrant 
is  returned,  and  the  said  John  Smith  is  brought,  and  now  ap- 
pears before  me,  the  said  Justice ;  and  I,  having  upon  such  ap- 
pearance proceeded  summarily  to  inquire  into  the  facts,  and 
heard  the  proofs  and  allegations  to  me  submitted,  touching  said 
complaint ;  and  it  appearing  to  me,  by  competent  testimony  be- 
fore me  given,  touching  said  complaint,  and  the  said  John  Smith 
not  having  shown  any  sufficient  matter  in  his  defence  thereof — 
that  the  said  Smith  is  guilty  of  the  premises  in  said  complaint 
alleged — the  said  John  Smith  is  therefore,  in  pursuance  of  sta- 
tute, &c.,  duly  convicted  before  me,  the  said  Justice,  of  the 
offence  in  said  complaint  set  forth  and  charged,  and  is  hereby 
adjudged  to  have  forfeited  the  sum  of  one  dollar  [or  "  two  dol- 
lars and  fifty  cents,"  as  the  case  may  be]  for  said  offence.  Given 
under  my  hand,  at  Owego  aforesaid,  June  5th,  1849. 

James  Bush,  Justice. 

The  like  fees  are  allowed  as  in  civil  cases,  not  exceeding  in 
amount  five  dollars.     (1  R.  S.  851,  sec.  75.) 

If  the  offender  do  not,  upon  the  conviction,  pay  the  penalty 
and  costs,  the  Justice  is  required  to  issue  an  execution  to  collect 
the  same  of  the  goods  and  chattels  of  the  offender ;  and  for 
want  thereof,  to  commit  him  to  jail  for  a  time,  to  be  specified  in 
the  execution,  not  less  than  one,  nor  more  than  three  days.  (Id. 
sec.  73.) 

FORM    OF    EXECUTION. 

Tioga  Comity,  ss. 

To  any  Constable  of  said  County,  Greeting : — 
Whereas,  John  Smith,  of  Owego,  in  said  county,  has  been 
this  day  convicted  before  me,  the  undernamed  Justice  of  the 
Peace  of  said  county,  of  the  offence  of  fishing  on  the  third  day 
of  June  instant,  being  the  first  day  of  the  week,  called  Sunday, 
[or  as  the  offence  may  be,]  contrary  to  the  statute  in  such  case 


362  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

made  and  provided — as  by  my  record  of  such  conviction  by  me 
made  and  signed,  and  now  remaining  before  me,  will  more  fully 
appear — whereby  the  said  John  Smith  has  forfeited,  and  become 
liable  to  pay  the  penalty  or  forfeiture  of  one  dollar,  together  with 
the  costs  of  prosecution  and  conviction,  amounting  to  the  sum  of 
four  dollars.  And  whereas,  the  said  John  Smith  has  neglected  to 
pay  the  said  forfeiture  and  costs,  and  the  same  remain  wholly  un- 
paid :  You  are  therefore  hereby  commanded,  in  the  name  of  the 
people  of  the  state  of  New  York,  to  levy  the  said  penalty  and 
costs  of  the  goods  and  chattels  of  the  said  John  Smith,  in  said 
county ;  and  in  case  sufficient  goods  and  chattels  cannot  be 
found,  you  are  further  commanded  to  convey  the  said  John 
Smith  to  the  common  jail  of  said  county,  the  keeper  whereof  is 
hereby  required  to  detain  him  in  safe  custody  in  such  jail  for  the 
period  and  term  of  two  days.  Given  under  my  hand  at  Owego, 
June  5th,  1849. 

James  Bush,  Justice. 

In  enforcing  the  forfeiture  for  exposing  goods  to  sale  on  Sun- 
day, the  preceding  forms  of  a  complaint,  warrant,  and  record  of 
conviction,  varied  to  correspond  with  the  recital,  in  the  follow- 
ing form  of  a  warrant,  and  the  facts  of  the  case  may  serve  as 
precedents. 

FORM    OF    WARRANT    TO    SEIZE    GOODS    &C.    FORFEITED. 

Tioga  County,  ss : 

To  any  Constable  of  said  County,  Greeting  : 

Whereas,  John  Smith,  of  Owego,  in  said  county,  is  duly  con- 
victed before  me,  the  undernamed  Justice  of  the  Peace  of  said 
county,  of  the  offence  of  having,  on  the  third  day  of  Jane,  in- 
stant, being  the  first  of  the  week,  called  Sunday,  at  Owego, 
aforesaid,  exposed  to  sale  one  bushel  of  apples,  one  barrel  of 
flour,  one  spool  of  thread,  (fee,  [specifying  the  number,  quality, 
and  Kind,  of  goods,']  contrary  to  the  statute  in  such  case  made 
and  provided,  whereby  the  said  John  Smith  has  forfeited  all  and 
singular  the  said  goods  and  articles  so  exposed  to  sale,  to  the 
use  of  the  poor  of  tlic  said  town — all  things  in  relation  to  such 
conviction  more  fully  appearing  by  my  record  thereof,  by  me 
made  and  signed,  and  which  is  now  remaining  before  me.  You 
arc,  therefore,  hereby  commanded,  in  the  name  of  the  people  of 


INTERNAL  POLICE  OF  THE  STATE.  353 

the  state  of  New  York,  to  take  and  seize  all  and  singular  the 
said  goods  and  articles,  and  sell  the  same  at  public  vendue,  as 
by  law  required — and  you  are  further  required  to  levy  of  the 
goods  and  chattels  of  the  said  John  Smith,  other  than  the  goods 
so  exposed  to  sale,  as  aforesaid,  the  sum  of  three  dollars,  by  me 
ascertained  as  the  costs  of  the  prosecution  and  conviction  afore- 
said. And  you  will  bring  the  moneys  which  you  shall  so  levy, 
before  me,  with  this  warrant,  without  delay.  Given  under  my 
hand  at  Owego,  Jime  5th,  1849. 

James  Bush,  Justice. 

The  magistrate  must  cause  a  certificate  of  the  conviction  to 
be  filed  in  the  county  clerk's  office,  within  thirty  days  after  the 
conviction,  briefly  stating  the  offence  charged,  the  conviction 
and  judgment  therein,  and  if  any  fine  has  been  collected,  the 
amount  thereof,  and  to  whom  paid.     (1  R.  S.  851,  sec.  74.) 

No  court  shall  be  opened,  or  transact  any  business  on  Sunday, 
unless  it  be  for  the  purpose  of  receiving  a  verdict  or  discharging 
a  jury  ;  and  every  adjournment  of  a  court  on  Saturday  to  another 
day,  shall  always  be  to  some  other  day  than  Sunday,  except 
such  adjournment  as  may  be  made  after  a  cause  has  been  com- 
mitted to  a  jury.  But  this  section  shall  not  prevent  the  exercise 
of  the  jurisdiction  of  any  single  magistrate,  when  it  shall  be  ne- 
cessary in  criminal  cases,  to  preserve  the  peace,  or  arrest  offen- 
ders,    (2  R.  S.  374,  sec.  9.) 

No  writ,  process,  warrant,  order,  judgment,  decree,  or  other 
proceeding  of  any  court  or  office  of  Justice  of  the  Peace,  which 
shall  be  served  or  executed  on  the  seventh  day  of  the  week, 
commonly  called  Saturday,  by  or  upon  any  person  whose  re- 
ligious faith  and  practice  is  to  keep  the  seventh  as  a  day  set 
apart  by  divine  command,  as  the  sabbath  of  rest  from  labor,  and 
dedicated  to  the  worship  of  God,  shall  be  valid,  except  in  cases 
of  breaches  of  the  peace,  or  apprehension  of  persons  charged 
with  crimes  and  misdemeanors.  The  service  of  any  such  pro- 
ceeding, in  all  other  cases,  shall  be  utterly  void.  (1  R.  S.  850, 
sec.  69.) 

Any  person  who  shall  knowingly  and  maliciously  cause  or 
procure  any  process  issued  from  a  Justice's  Court,  in  a  civil  suit, 
to  be  served  on  said  day,  upon  any  such  person,  or  who  shall 
serve  any  such  process,  which  shall  be  made  returnable  on  said 


364  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

day,  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof,  shall  be  subject  to  a  fine  not  exceeding  one  hundred 
dollars,  or  imprisonment  not  exceeding  thirty  days,  or  both. 
(Laws  1847,  ch.  349,  sec.  2.) 

Any  person  who  shall  in  like  manner  procure  any  such  suit 
pending  in  such  court  against  any  person  of  such  religious  faith 
and  practice,  to  be  adjudged  and  to  be  tried  on  said  day,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  subject  to  like  punish- 
ment.    (Id.  sec.  3.) 

No  person  whose  religious  faith  and  practice  is  to  keep  the 
seventh  day  of  the  week  commonly  called  Saturday,  as  a  day 
set  apart  by  divine  command,  as  the  sabbath  of  rest  from  labor, 
and  dedicated  to  the  worship  of  God,  shall  be  subject  to  perform 
military  duty,  or  jury  duty  in  a  Justice's  Court,  on  such  day, 
except  that  such  persons  shall  be  subject  to  perform  military 
duty  on  such  day,  in  case  of  invasion,  insurrection,  or  in  time  of 
war.     (Id.  sec.  1.) 

10.   Of  Excise,  and  the  Regulation  of  Taverns  and  Groceries. 

Commissioners  of  excise,  are  the  supervisors  of  every  town, 
and  Justices  of  the  Peace  resident  therein.  Three  of  them,  con- 
sisting of  the  supervisor  and  any  two  Justices,  form  a  compe- 
tent board.  If  there  are  not  two  Justices  in  the  town,  the  super- 
visor may  associate  with  him  two  Justices  of  a  neighboring 
town.  If  the  office  of  supervisor  be  vacant,  then  any  three  of 
the  Justices  form  the  board.     (1  R.  S,  852,  sec.  1.) 

All  the  Justices  of  the  town,  are,  by  virtue  of  their  office,  com- 
missioners of  excise.  More  than  two  may,  therefore,  be  associ- 
ated with  the  supervisor,  and  the  acts  of  the  majority  are  valid, 
although  the  supervisor  do  not  concur.     (Id.     1  J.  R.  500.) 

The  duties  of  the  board  are  confined  to  granting  licenses  to 
tavern  keepers  and  grocers,  to  sell  strong  and  spirituous  liquors 
and  wines. 

The  commissioners  are  required  to  meet  in  their  respective 
towns  on  the  first  Monday  of  May.  in  each  year,  and  on  such 
other  days  as  the  supervisors  shall  appoint,  at  such  place  as  he 
shall  designate  ;  and  if  the  office  of  supervisor  be  vacant,  on  such 
other  days  and  at  such  oilier  places  as  the  Justices  of  the  town 
may  appoint.     (1  R.  S.  852,  sec.  2.) 

They  have  jjowcr  to  grant  licenses  to  keepers  of  inns  and  tav- 


INTERNAL  POLICE  OF  THE  STATE.  3^5 

ems,  being  residents  of  their  town,  to  sell  strong  and  spirituous 
liquors  and  wines,  to  be  drank  in  their  houses ;  and  to  grocers 
being  such  residents,  a  license  to  sell  such  liquors  in  quantities 
less  than  five  gallons,  but  not  to  be  drank  in  their  shops,  houses, 
out-houses,  yards  or  gardens.     (Sec.  4.) 

The  statute  does  not  require  the  commissioners  to  take  an 
oath  before  granting  a  license.  As  they  are  commissioners  by 
virtue  of  their  offices,  they  are  deemed  to  act  under  their  general 
official  oath. 

The  board  are  required  to  keep  a  book  of  minutes  of  all  their 
proceedings,  in  which  must  be  entered  every  resolution  passed 
by  them,  granting  a  license  to  any  person,  with  the  sum  required 
therefor  from  the  applicant.  The  minutes  must  be  verified  by 
their  signatures,  and  filed  with  the  town  clerk  within  five  days. 
(Sec.  3.) 

No  license  can  be  granted,  except  to  a  resident  of  the  town, 
for  which  the  board  is  formed.     (Sec.  4.) 

The  duty  required  to  be  paid  for  a  license,  must  be  deter- 
mined by  the  board,  at  a  sum,  however,  not  less  than  five  dol- 
lars, nor  more  than  thirty  dollars.     (Id.) 

Every  license  must  be  in  writing,  and  signed  by  the  commis- 
sioners. A  parol  license,  although  the  money  is  paid,  is  wholly 
void.     (11  J.  R.  179.) 

No  fee  or  reward  can  be  taken  by  any  board  of  excise,  nor  by 
any  member  of  such  board,  for  any  license  to  keep  a  tavern,  or 
to  sell  strong  and  spirituous  liquors,  or  for  any  service  required 
of  the  board  ;  nor  can  any  compensation  be  retained  by  any  such 
board,  or  by  any  member  thereof,  out  of  the  excise  money,  but 
the  whole  amount  thereof  must  be  paid  over,  in  the  manner  now 
required  by  law.  The  persons  composing  the  board  of  excise, 
however,  are  entitled  each  to  receive  the  sum  of  one  dollar  and 
twenty-five  cents  for  one  day's  attendance  only  thereon,  when 
actually  done,  to  be  audited,  allowed,  and  paid  in  like  manner  as 
other  town  charges ;  but  no  other  or  greater  compensation  is  al- 
lowed, whether  any  license  shall  be  granted  or  not,  or  whether 
such  board  shall  be  in  session  one  day  or  more  than  one.  The 
expenses  of  procuring  blanks  for  the  licenses,  when  actually  in- 
curred, must  be  audited,  allowed,  and  paid,  in  like  manner  as 
other  town  charges.     (Laws  1843,  ch.  97,  sec.  3.) 

A  license  can  in  no  case  be  granted  to  sell  liquors  and  wines 
in  the  house  of  the  seller,  unless  the  applicant  proposes  to  keep 


366  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

a  tavern,  nor  unless  the  commissioners  are  satisfied  in  the  fol- 
lowing particulars,  to  wit :  that  the  applicant  is  of  good  moral 
character  ;  that  he  is  of  sufficient  ability  to  keep  a  tavern  ;  that 
he  has  the  necessary  accommodations  to  entertain  travelers  ; 
and  that  a  tavern  is  absolutely  necessary  for  the  actual  accom- 
modation of  travelers,  at  the  place  where  the  applicant  proposes 
to  keep  the  same  ;  all  of  iiyhich  must  be  expressly  stated  in 
every  license.     (1  R.  S.  853,  sec.  7.) 

Nor  can  a  license  be  granted  to  a  person  proposing  to  keep 
tavern,  until  he  shall  have  executed  and  delivered  to  the  super- 
visor— or,  in  case  of  his  absence,  to  one  of  the  Justices  of  the 
town — a  bond  to  the  people  of  this  state,  in  the  penal  sum  of 
one  hundred  and  twenty-five  dollars,  with  a  sufficient  surety  to 
be  approved  by  the  board  of  commissioners,  with  a  condition 
according  to  the  following  form.     (Id.  sec.  8.) 

FORM    OF    BOND. 

Know  all  men  by  these  presents,  that  we,  John  Doe  and 
Richard  Roe,  of  Norwich,  in  the  county  of  Chenango,  are  held 
and  firmly  bound  unto  the  people  of  the  state  of  New  York,  in 
the  penal  sum  of  one  hundred  and  twenty-five  dollars,  for  the 
payment  of  which  sum  to  the  said  people,  we  bind  ourselves, 
our  heirs,  executors,  and  administrators,  jointly  and  severally, 
firmly  by  these  presents.  Sealed  with  our  seals,  and  dated  this 
7th  day  of  May,  1849. 

The  condition  of  this  obligation  is  such,  that  whereas,  the 
said  John  Doe  is  about  to  make  application  to  the  commission- 
ers of  excise  of  said  town,  for  a  license  to  sell  strong  and  spiri- 
tous  liquors,  and  wines,  during  the  ensuing  year,  to  be  drank  in 
his  present  dwelling  house  in  said  town,  where  he  proposes  to 
keep  an  inn  or  tavern  :  Now,  therefore,  if  said  license  shall  be 
granted,  and  during  tlic  time  tlie  said  John  Doc  shall  keep  an 
inn  or  tavern,  he  shall  not  suffi3r  it  to  be  disorderly,  or  suffer 
any  cock  fighting,  gaming,  or  playing  with  cards  or  dice,  or 
keep  any  billiard  table,  or  other  gaming  table,  within  the  tavern 
so  kept  by  him,  or  in  any  out-house,  yard,  or  garden,  belonging 
thereto — then  tliis  obligation  to  be  void,  otherwise  of  force. 

John   Doe,         [l.  s.] 
Richard  Roe,  [l.  s.] 
Scaled  and  cJc^livered  in  presence  of 

John  Smith. 


INTERNAL  POLICE  OF  THE  STATE.  367 

The  board  should  certify  their  approbation  of  the  surety, 
either  beneath  or  upon  the  bond. 

FORM. 

We,  the  commissioners  of  excise  of  the  town  of  Norwich, 

convened  as  a  board,  this  seventh  day  of  May,  1S49,  approve 

of  the  surety  to  the  within  (or  'Aforegoing")  bond. 

James  Strong,  Supervisor. 

Henry  Sandford,  ) 

c,  r>  r  Justices. 

Samuel  Park,  ^ 

Licenses  to  keep  taverns  may  be  granted,  without  including 
a  license  to  sell  strong  or  spirituous  liquors,  or  wines,  or  alco- 
holic drinks.  In  such  cases,  the  license  must  express  the  re- 
striction on  its  face ;  and  no  sum  of  money  or  fee  for  such 
license  can  be  required.  A  bond,  however,  similar  to  the  fore- 
going, must  be  given.     (1  R.  S.  853,  sec.  9.) 

FORM    OF    tavern    KEEPEr's    LICENSE. 

Whereas,  John  Doe,  a  resident  of  the  town  of  Norwich,  has 
this  day  applied  to  the  undernamed,  being  associated  and 
forming  a  board  of  commissioners  of  excise,  in  and  for  said 
town,  for  a  license  to  sell  strong  and  spirituous  liquors  and 
wines,  to  be  drank  at  his  dwelling  house  in  said  town,  where 
said  John  Doe  proposes  to  keep  an  inn  or  tavern,  (or,  "  for  a 
license  to  keep  an  inn  or  tavern  for  the  accommodation  of  trav- 
elers, in  which  said  inn  or  tavern,  no  strong  and  spirituous 
liquors  and  wines  are  to  be  kept  for  sale  ;)  and  we,  being  sat- 
isfied that  said  John  Doe  is  of  good  moral  character,  that  he  is 
of  sufficient  ability  to  keep  a  tavern,  has  the  necessary  accom- 
modations to  entertain  travelers,  and  that  a  tavern  is  absolutely 
necessary  for  the  actual  accommodation  of  travelers  at  the 
place  where  he  proposes  to  keep  tavern  as  aforesaid ;  and  the 
said  John  Doe  having  executed  the  required  bond  with  surety, 
by  us  approved :  We  do,  therefore,  grant  to  said  John  Doe,  the 
license  by  him  applied  for,  as  aforesaid,  to  be  and  remain  in 
force,  until  the  day  after  the  first  Monday  of  May  next,  and  no 
longer. 


368  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

Given  under  our  hands  at  Norwich,  May  7th,  1849. 

James  Strong,  Supervisor. 

Henry  Sandford,  )  ^ 

o  Ti  ^  Justices. 

Samuel  Fark,  ) 

It  is  provided,  that  every  inn  holder  or  tavern  keeper  shall, 
within  thirty  days  after  obtaining  his  license,  put  up  a  proper 
sign,  on  or  adjacent  to  the  front  of  his  house,  with  his  name 
thereon,  indicating  in  some  way  that  he  keeps  a  tavern,  and 
shall  keep  up  such  sign  during  the  time  he  keeps  a  tavern. 
For  every  month's  neglect  to  keep  up  such  sign,  he  will  forfeit 
one  dollar  and  twenty-five  cents.     (1  R.  S.  853,  sec.  11.) 

No  person,  who  has  not  at  the  time,  a  license  to  keep  a  tavern, 
can  erect,  put  up,  or  keep  up,  any  sign  indicating  that  he  keeps 
a  tavern,  under  the  penalty  of  one  dollar  and  twenty-five  cents 
for  every  day  such  sign  is  kept  up.     (Id.  sec.  12.) 

No  inn  holder  or  tavern  keeper  can  trust  any  persons,  other 
than  those  who  may  be  lodgers  in  his  house,  or  travellers  not 
residing  in  the  same  city  or  town,  for  any  sort  of  strong  or 
spirituous  liquors,  or  tavern  expenses,  above  the  sum  of  one 
dollar  and  twenty-five  cents  ;  nor  can  he  recover  the  same  by 
any  suit.  All  securities  given  for  such  debts  are  void  ;  and  the 
inn  keeper  taking  such  securities  with  intent  to  evade  the  sta- 
tute, will  forfeit  double  the  sum  intended  to  be  secured.*  (1  R. 
S.  854,  sec.  13.) 


*  An  inn  keeper  is  defined  to  be  a  person  who  keeps  open  house,  and  supplies 
the  public  with  board  and  lodging,  for  hire.     (Story  on  Con.  646.) 

A  private  boarding  house,  lodging  house,  or  a  cuffee  house,  is  not  an  inn.  So 
also,  entertaining  strangers  occasionally,  for  compensation,  does  not  constitute  a 
person  an  inn  keeper. 

An  inn  keeper  cannot  lawfully  refuse  to  receive  guests  to  the  extent  of  his  ac- 
commodations ;  nor  can  he  impose  unreasonable  terms  upon  them.  IIo  is  bound 
to  receive  all  who  come,  unleas  they  are  drunk,  or  disorderly,  or  alilicted  with  con- 
tagious diseases  ;  to  accommodate  them  with  board  and  convenient  lodging  rooms  ; 
to  take  jtroper  caro  of  their  goods  and  baggage  ;  and  to  supply  their  reasonable 
wants  and  requeslH  for  a  reasonable  compensation.     (Story  on  Bail.  476.) 

If  an  inn  keeper  refuses,  improperly,  to  receive  or  provide  for  a  guest,  ho  may  be 
indicted  ;  unless  ho  has  a  well  founded  objection  to  the  guest's  personal  character 
or  conduct.  But  if  such  person  be  disorderly,  he  may  not  only  refuse  to  receive 
him,  but  after  ho  has  received  him,  he  may  eject  him  from  the  house.  Guests 
must  conform  to  the  reasonable  regulations  of  the  house,  and  the  reasonable  re- 
quests of  the  inn  keeper.     (.Story  on  Con.  647.) 

An  inn  keeper  is  responsible  for  the  acts  of  his  servants,  and  for  thefts,  and  is 


INTERNAL  POLICE  OF  THE  STATE.  359 

The  commissioners  cannot  grant  a  license  to  a  grocer,  unless 
they  are  satisfied  that  the  applicant  is  of  good  moral  character, 
nor  until  he  shall  have  executed  a  bond,  with  surety  to  be  ap- 
proved by  the  board,  and  with  a  penalty  and  condition  substan- 
tially in  the  following  form :     (1  R.  S.  854,  sec.  15.) 

FORM    OF    A    grocer's    BOND. 

(Draw  the  penal  j)art  of  the  bond  as  in  the  fo7'egoing  form  of 
a  tavern  keejier^s  hand,  to  which  add  the  following  condition.) 

The  condition  of  this  obligation  is  such,  that  whereas  the 
said  John  Doe  is  about  to  apply  to  the  commissioners  of  excise 
of  said  town  for  a  license  to  sell  strong  and  spirituous  liquors 
and  wines,  in  quantities  less  than  five  gallons,  as  a  grocer.  Now 
if  the  said  license  shall  be  granted,  and  the  said  John  Doe,  dur- 
ing the  time  for  which  his  license  shall  be  granted,  shall  not 
suffer  his  grocery  to  become  disorderly,  and  shall  not  sell  or 
suffer  to  be  sold  any  strong  or  spirituous  liquors  or  wines,  to  be 
drank  in  his  shop  or  house,  or  in  any  out-house,  yard  or  garden 
appertaining  thereto,  and  shall  not  suffer  any  such  liquor,  sold 


bound  to  take  all  due  care  of  the  goods  and  baggage  deposited  in  his  house,  or 
intrusted  to  the  care  of  his  family  or  domestics.  He  is  said  to  be  chargeable  on 
the  ground  of  the  profit  he  receives  for  entertaining  his  guests.  The  custody  of 
the  goods  of  his  guest,  is  part  and  parcel  of  the  contract  to  feed,  lodge,  and  accom- 
modate the  guest  for  a  suitable  reward,  His  responsibility  is  nearly  coincident  with 
that  of  a  common  carrier.  It  is  not  necessary  that  the  goods  belonging  to  the 
guest  should  be  put  specially  iu  the  charge  of  tlie  inn  keeper ;  for  if  they  are  in  his 
house,  they  are  under  his  implied  care,  whether  he  is  ignorant  of  such  fact  or  not  ; 
and  if  they  are  stolen,  he  is  responsible.  (_2  Kent's  Com.  592.  Story  on  Con- 
tracts, 648.) 

A  person  who  lodges  temporarily  at  an  inn,  or  who  leaves  his  horses  and  goods 
there,  and  lodges  elsewhere,  is  a  guest ;  and  the  inn  keeper  is  responsible  for  goods 
so  left,  provided  he  receives  a  compensation  therefor.  But  if  he  come  upon  a 
special  contract  and  stay,  he  is  a  boarder,  and  not  a  guest.  So  also,  a  neighbor  or 
friend,  who  comes  at  the  request  of  the  inn  keeper,  is  not  a  guest.      (Id.) 

Whenever  there  is  a  loss  by  a  guest  at  an  inn,  the  inn  keeper  \s  prima  facie 
responsible.  He  may,  however,  exonerate  himself  by  proving  that  the  loss  was 
not  by  means  of  any  person  for  whom  he  is  liable  ;  that  it  was  not  of  such  a  nature 
as  to  render  him  legally  responsible  ;  or  that  the  guest  had  undertaken  the  exclu- 
aive  custody  of  the  goods,  or  exposed  them  to  peril  by  his  own  negligence.    (Id.) 

As  a  compensation  for  the  inn  keeper's  responsibility,  he  has  a  lien  on  all  the 
goods  at  the  inn,  for  all  his  expenses  there,  (Story  on  Bail.  311.)  The  lien  does 
not,  however,  extend  to  the  person  of  the  guest,  or  personal  clothing  that  he  has 
on.     (Story  on  Con.  647.) 

24 


370  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

by  virtue  of  such  license,  to  be  drank  in  his  shop  or  house,  or  in 
any  out-house,  yard  or  garden  belonging  thereto,  then  this  obli- 
gation to  be  void — otherwise,  of  force. 

John  Doe,         [l.  s.] 
Richard  Roe,  [l.  s.] 
Sealed  and  delivered  in  presence  of 
John  Smith. 

The  approbation  of  the  board  "with  the  surety  should  be  sub- 
joined to,  or  endorsed  upon  the  foregoing,  as  in  the  preceding 
form. 

In  all  licenses  that  maybe  granted  to  grocers  or  other  persons 
applying  for  the  same,  (excepting  tavern  keepers,)  to  sell  strong 
or  spirituous  liquors  or  wines,  in  quantities  less  than  five  gal- 
lons, there  must  be  inserted  an  express  declaration  that  such 
license  shall  not  be  deemed  to  authorize  such  sale  of  any 
liquor  or  wine  to  be  drank  in  the  house  or  shop  of  the  person 
receiving  such  license,  or  in  any  out-house,  yard  or  garden  ap- 
pertaining thereto,  or  connected  therewith,  (1  R.  S.  854,  sec- 
tion 14.) 

FORM    OF    grocer's    LICENSE. 

Whereas,  John  Doe,  a  resident  of  the  town  of  Norwich,  has 
applied  to  us  the  undernamed,  being  associated,  and  forming  a 
board  of  commissioners  of  excise,  in  and  for  said  town,  for  a 
license  to  sell  strong  and  spirituous  liquors  and  wines,  in  quan- 
tities less  than  five  gallons ;  and  we,  being  satisfied  that  said 
John  Doe  is  of  good  moral  character,  and  he  having  executed 
a  bond,  with  surety  by  us  approved,  as  by  law  required,  license 
is  therefore  hereby  granted  to  said  John  Doc,  pursuant  to  his 
application  aforesaid,  to  remain  in  force  until  the  day  after  the 
first  Monday  in  May  next,  and  no  longer.  But  it  is  hereby  ex- 
pressly declared,  that  this  license  shall  not  be  deemed  to  autho- 
rize such  sale  of  any  liquor  or  wine  to  be  drank  in  the  house 
or  shop  of  the  said  John  Doe,  or  in  any  out-house,  yard  or  gar- 
den appertaining  thereto,  or  connected  therewith.  Given  under 
our  hands  at  Norwicii,  May  7th,  1840. 

James  Strong,  Supervisor. 


Henry  Sandford,  /  t    *• 
^  ,^  '  >  Justices. 

oAMifEL  Park,  ) 


INTERNAL  POLICE  OF  THE  STATE. 


FORM    OF   commissioners'    BOOK   OF    MINUTES. 


371 


At  a  meeting  of  the  Commissioners  of  Excise  of  the  town  of 
Norwich,  in  the  county  of  Chenango,  on  the  7th  day  of  May, 
1849, 

Present,  James  Strong,  Supervisor. 

Henry  Sandford,  )  Justices  of  the  Peace 
Samuel  Park,  )  of  said  town. 

Resolved.  That  hcenses  be  granted  to  the  following  persons 
to  retail  strong  and  spirituous  liquors  and  wines,  and  that  the 
sum  to  be  paid  for  each  license  be  the  sum  put  opposite  the 
name  of  such  person,  to  wit : — 

John  Doe,  as  a  tavern  keeper,  ^15  00 

Jesse  Orcutt,  "  '•  15  00 

Hiram  Way,  as  a  grocer,  8  00 

In  witness  whereof,  we,  the  said  commissioners,  have  here- 
unto subscribed  our  names,  the  day  and  year  above  written. 

James  Strong,  Supervisor. 

Henry  Sandford,  }  r    ^■ 
„  „  '  >  Justices. 

Samuel  Park,  ) 

From  the  whole  tenor  of  the  statute,  it  is  obvious  that  the 
commissioners  of  excise  can  do  no  valid  act,  except  while  or- 
ganized as  a  board. 

A  license  is  a  personal  trust,  which  cannot  be  assigned  to 
another.     (14  J.  R.  231.) 

All  licenses  expire  on  a  given  day.  If,  therefore,  a  license  be 
granted  at  an  adjourned  meeting  of  the  board,  however  short  a 
time  it  may  remain  in  force,  the  duty  required  cannot  be  less 
than  five  dollars. 


No  commissioner  of  excise  can  demand  or  receive  any  greater 
fee  for  drawing  any  bond  under  the  foregoing  provisions,  than 
twenty-five  cents.     (1  R.  S.  854,  sec.  16.) 

Whoever  sells  any  strong  or  spirituous  liquors  or  wines,  in 
any  quantity  less  than  five  gallons  at  a  time,  without  having  a 
license  therefor,  granted  in  the  manner  directed  by  statute,  will 
forfeit  twenty-five  dollars.     (Id.  sec.  17.) 

Whoever  sells  any  strong  or  spirituous  liquors  or  wines,  to  be 


372  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

drank  in  his  house  or  shop,  or  in  any  out-house,  yard  or  garden 
appertaining  thereto,  or  suffers  any  such  hquors  or  wines,  sold 
by  him,  or  under  his  direction  or  authority,  to  be  drank  in  his 
house  or  shop,  or  in  any  out-house,  yard  or  garden  appertaining 
thereto,  without  first  obtaining  a  Hcense  therefor,  as  a  tavern 
keeper,  will  forfeit  twenty-five  dollars.     (Id.  sec.  18.) 

It  is  provided  that  no  tavern  keeper,  grocer  or  other  person, 
licensed  to  sell  any  strong  or  spirituous  liquors  or  wines,  shall 
sell  any  such  liquors  or  wines  to  any  apprentice  or  servant, 
knowing  or  having  reason  to  believe  him  to  be  such,  without  the 
consent  of  his  master  ;  nor  to  any  minor  under  the  age  of  four- 
teen years,  without  the  consent  of  his  father  or  mother,  or  guar- 
dian, under  the  penalty  of  fi~ve  dollars,  to  be  recovered  of  the 
master  of  the  apprentice  or  servant,  or  by  the  parent  or  guardian 
of  the  minor.     (Id.  sec.  19.) 

It  is  further  provided  that  no  tavern  keeper,  grocer  or  other 
person  shall,  directly  or  indirectly,  take  or  receive,  from  any 
such  apprentice,  or  servant,  or  minor,  any  clothing  or  any  goods, 
money  or  things  in  action,  in  payment  for  any  strong  or  spiritu- 
ous liquors  or  wines,  sold  to  such  apprentice,  servant  or  minor, 
or  in  pawn  or  pledge,  to  secure  any  such  payment.  The  person 
offending  against  this  provision  forfeits  three  times  the  sum  or 
value  of  the  money  or  articles  so  received  to  the  master  of  the 
apprentice  or  servant,  or  to  the  parent  or  guardian  of  the  minor, 
as  the  case  may  be,  to  be  recovered  by  them,  together  with  the 
money  or  articles  so  received.     (1  R.  S.  855,  sec.  20.) 

No  tavern  keeper,  grocer  or  other  dealer  in  strong  or  spiritu- 
ous liquors,  can,  directly  or  indirectly,  sell,  or  cause  to  be  sold, 
any  strong  or  spirituous  liquor  to  any  pauper,  knoAving  him  or 
her  to  be  such  pauper.  Nor  can  a  person,  directly  or  indirectly, 
receive,  or  cause  to  be  received,  by  purchase  or  otherwise,  from 
any  such  pauper  or  person,  any  clothing  or  effects  whatever, 
knowing,  or  having  reason  to  know,  that  such  clothing  or  effects 
were,  in  the  whole  or  in  part,  furnished  to  such  pauper  or  per- 
son, at  the  public  expense.  Every  one  thus  offending,  forfeits 
for  each  oflbnce  the  sum  of  five  dollars,  in  addition  to  the  A^alue 
or  amount  of  such  clothing,  effects  or  money,  obtained  or  taken 
in  violation  of  the  statute,  to  be  sued  for  and  collected,  with 
costs,  by  and  in  the  name  of  the  superintendents  of  the  poor  of 
any  county  in  the  state  having  such  officers,  or  by  and  in  the 
name  of  the  overseers  of  the  poor  of  any  town  which  supports 


INTERNAL  POLICE  OF  THE  STATE.  373 

its  own  poor,  for  the  use  of  the  poor  of  such  county  or  town, 
as  the  case  may  be.     (Id.  sees.  23,  24,  25.) 

As  a  general  rule,  the  foregoing  penalties  must  be  sued  for 
and  recovered  by  the  overseers  of  the  poor  of  the  town  where 
the  offence  is  committed.     (Id.  sec.  21.) 

In  case  the  overseers  of  the  poor  neglect  for  ten  days  to  prose- 
cute for  the  penalty,  any  other  person  may  prosecute  therefor, 
in  the  name  of  the  overseer,  by  giving  security  to  the  court  or 
officer  before  whom  he  prosecutes,  for  the  payment  of  all  costs, 
if  he  fails  to  recover  judgment.     (Id.  sec.  22.) 

In  those  counties  in  which  the  distinction  between  town  and 
county  poor  is  abolished,  all  moneys  received  for  excise  duty,  in 
any  city  or  village,  except  the  city  of  New  York,  must  be  paid 
into  the  county  treasury,  for  the  support  of  the  poor ;  and  the 
same  remedies  may  be  had  for  the  collection  thereof,  by  the 
county  treasurer,  against  the  trustees,  or  other  persons  receiving 
the  same,  as  in  the  case  of  commissioners  of  excise  of  a  town. 
(1  R.  S.  857,  sec.  38.) 

Whenever  any  conviction  or  judgment  is  obtained  against 
any  person  licensed  to  sell  strong  or  spirituous  liquors,  or  wines, 
for  any  violation  of  the  statute,  either  in  a  suit  for  a  penalty,  or 
in  a  suit  upon  the  bond  given  by  such  person,  it  is  the  duty  of 
the  Justice,  or  court,  before  whom  the  same  is  had,  to  transmit 
to  the  next  Court  of  Sessions  of  the  Peace  of  the  county,  a 
statement  of  such  conviction  or  judgment,  and  of  the  offence 
for  which  it  was  obtained.     (1  R.  S.  856,  sec.  29.) 

The  Court  of  Sessions  must  cause  the  person,  against  whom 
such  conviction  or  judgment  was  obtained,  to  be  notified  to  ap- 
pear on  such  day  as  the  court  shall  appoint,  to  show  cause  why 
any  license  that  may  have  been  granted  to  him,  to  sell  strong 
or  spirituous  liquors,  or  wines,  should  not  be  revoked.  At  the 
day  appointed,  and  at  such  other  days  as  the  court  shall  ap- 
point, it  must  proceed  to  inquire  into  the  circumstances,  and 
may,  in  its  discretion,  revoke  and  annul  any  such  license.  If 
the  conviction  or  judgment  is  for  a  second,  or  other  offence  after 
the  first,  the  court  is  required  to  revoke  and  annul  the  license. 
(Id.  sec.  30.) 

Upon  any  order  being  entered,  for  the  revocation  of  any  such 
license,  the  license  will  be  annulled,  and  altogether  void  ;  and 
the  person  whose  license  is  so  revoked,  will  be  incapable  of  re- 
ceiving any  license  to  sell  strong  or  spirituous  liquors,  or  wines, 


374  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

for  the  space  of  three  years,  from  the  time  of  such  revocation. 
(Id.  sec.  31.) 

11.   Of  the  Destruction  of  Wolves,  and  oilier  noxious  Animals. 

A  state  bounty  is  allowed  to  any  inhabitant  of  this  state,  who 
shall  kill  a  wolf  within  any  county  of  the  state.  Ttie  bounty 
is  ten  dollars  for  a  full  grown  wolf,  and  five  dollars  for  a  whelp. 
(1  R.  S.  SS8,  sec.  1).* 

The  person  intending  to  apply  for  the  bounty,  must  take  the 
wolf  or  whelps,  or  the  head  thereof,  Avith  the  skin  and  ears  en- 
tire thereon,  to  a  Justice  of  the  Peace  of  the  town  where  it  was 
taken.  The  Justice  must,  thereupon,  associate  with  him,  to  de- 
cide upon  the  application,  either  an  assessor,  overseer  of  the 
poor,  or  commissioner  of  highways  of  the  town.     (Id.  sec.  2.) 

The  person  applying  is  then  to  be  sworn  by  the  Justice,  and 
must  state  the  time  and  place  when  and  where  the  wolf  or 
whelps  was  taken  or  killed,  and  must  also  submit  to  such  exa- 
mination as  the  officers  associated  may  require,  concerning  such 
taking  and  killing.  The  statements  so  made  on  oath  by  the 
applicant,  must  then  be  reduced  to  writing,  and  subscribed  by 
the  applicant.     (1  R.  S.  888,  sec.  3.) 

FORM    OF  AFFIDAVIT. 

ToiV7i  of  Oxford^  ss. — Richard  Roe  being  duly  sworn  by 
David  Long,  the  undernamed  Justice  of  the  Peace  of  said  town, 
and  examined  by  the  said  Justice,  and  Henry  Brown,  one  of  the 
overseers  of  the  poor  of  said  town,  deposes  and  says,  that,  on 
the  first  day  of  June,  instant,  and  in  Oxford,  aforesaid,  he  per- 
sonally took  and  killed  a  full  grown  wolf,  [or,  "a  wolf's  whelp, 
and  that  the  mother  of  said  whelp  was  not  taken  before  she 
brought  forth  the  same,"]  and  that  the  wolf  [or  "  whelp",]  so 
taken  and  killed  by  him  is  the  same  which  is  now  presented  to 
said  Justice  and  overseer,  [or,  "  is  the  same  wherefrom  the  head 
now  presented  to  said  Justice  and  overseer  was  severed."] 

Subscribed  and  sworn,  Richard  Roe. 

June  5th,  1849,  before  mo, 

David  Long,  Justice. 

*  All  exiotiiig  laws,  in  relation  to  the  destruction  of  wild  beasts,  are  repealed — 
the  repeal  to  take  cfllct  on  the  iHt  day  of  .laniiiiry,  1850.     Tlio   power  to   enact 
Hucli  lawH,  iH  now  vested  in  the   boards  of  supervisors  of  tlie  respective  counties 
(Laws,  1819,  cb.  191.) 


INTERNAL  POLICE  OF  THE  STATE.  375 

If  it  appear  to  tlie  Justice  and  officer  associated  with  him, 
upon  such  examination,  that  the  wolf  or  whelp  was  taken  and 
killed  within  this  state,  by  the  person  applying  for  the  bounty, 
and  that  the  mother  of  the  whelp  was  not  taken  before  she 
brought  forth  the  same,  they  are  to  cut  off  and  burn  the  ears 
and  scalp  of  the  wolf  or  whelp,  and  deliver  to  the  person  so  ap- 
plying a  certificate  of  the  facts,  annexing  thereto  the  original 
affidavit  made  and  subscribed  by  such  person.     (Sec.  4.) 

FORM    OF    CERTIFICATE. 

We,  the  undernamed  David  Long,  one  of  the  Justices  of  the 
Peace  of  the  town  of  Oxford,  and  Henry  Brown,  one  of  the 
overseers  of  the  poor  of  said  town,  do  hereby  certify,  that  upon 
the  application  of  Richard  Roe,  of  the  said  town,  we  have  this 
day  associated  to  examine  the  said  Richard,  on  oath,  and  other- 
wise to  do  as  by  law  required,  respecting  the  claim  of  the  said 
Richard,  to  a  bounty  for  having  taken  and  killed  a  full  grown 
wolf,  [or  "  wolf's  whelp,"]  which  said  Richard  brought  before  us, 
[or  "  the  head  whereof,  with  the  skin  and  ears  entire  thereon,  the^ 
said  Richard  brought  before  us."]  And  we  further  certify,  that 
said  Richard  has  been  duly  sworn  by  said  Justice,  and  examin- 
ed by  us,  touching  his  said  claim,  and  that  the  statements  made 
by  said  Richard,  on  oath  before  us,  or  the  substance  thereof,  are 
contained  in  the  annexed  affidavit,  made  in  our  presence.  And 
it  appearing  to  us,  that  the  said  Richard  did  take  and  kill  said 
wolf,  within  this  state,  [or,  "  said  wolf's  whelp,  within  this 
state,  and  that  the  mother  of  such  whelp  was  not  taken  before 
she  brought  forth  the  same,"]  and  at  the  time  and  place  set  forth 
in  said  affidavit,  we  did,  therefore,  cut  off  and  burn  the  ears  and 
scalp  of  said  wolf,  [or  "  whelp,"]  as  by  law  required.  Given 
under  our  hands,  at  Oxford,  June  5th,  1849. 

David  Long,  Justice. 

Henry  Brown,  Overseer  of  the  Poor. 

The  Justice  is  required  to  number  every  certificate  issued  by 
him  during  the  year,  and  to  mark  the  number  and  year  on  each 
certificate.     (1  R.  S.  888,  sec.  4.) 

The  certificate  and  affidavit,  within  five  days  after  the  date 
thereof,  are  to  be  delivered  to  the  supervisor  of  the  town,  or  left 
at  his  dwelling  house  in  case  of  his  absence.  If  the  supervisor 
doubt  the  correctness  of  the  certificate  or  affidavit,  he  is  to  give 


376  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

notice  to  the  person  claiming  the  bounty  to  give  further  evidence 
of  the  correctness  thereof,     (Id.  sec.  5.) 

If  the  supervisor  shall  have  no  doubt  as  to  the  correctness  of 
the  certificate  and  affidavit,  or  if  his  doubts  shall  be  removed  by 
farther  proof,  he  is  to  lay  the  certificate  and  affidavit  before  the 
board  of  supervisors.  If  the  board  are  satisfied  that  the  certifi- 
cate and  affidavit  are  just  and  correct,  they  are  to  award  the 
bounty.     (Sec.  6.) 

The  boards  of  supervisors  of  several  of  the  counties  of  the 
state,  are  authorized  to  give  additional  bounties  for  wolves  and 
panthers.  In  such  cases,  the  same  proof  is  required  as  upon  ap- 
plication for  a  state  bounty.     (Sec.  12.) 

i.{  any  Justice  or  other  ofiicer,  wilfully  gives  a  false  certificate, 
he  is  guilty  of  a  misdemeanor,  and  punishable  by  a  fine,  not  ex- 
ceeding one  thousand  dollars,  or  by  imprisonment,  not  exceeding 
two  years.     (1  R,  S.  890,  sec.  13.) 

12.   Of  Hawkers  and  Pedlars. 

The  statute  prohibits  persons  from  travelling  from  place  to 
place,  selhng,  or  exposing  to  sale,  goods,  wares,  or  merchandise, 
of  the  growth,  produce,  or  manufacture  of  a  foreign  country,  un- 
less they  obtain  a  license.     (1  R.  S.  707,  sec.  1.) 

Every  person  found  traveling  and  trading  without  a  license, 
or  contrary  to  the  terms  of  his  license,  forfeits,  for  each  offence, 
twenty-five  dollars,  to  the  use  of  the  poor  of  the  town  in  which 
the  offence  is  committed  ;  and  for  refusing  to  produce  his  li- 
cense to  any  officer  or  citizen,  demanding  the  inspection  of  the 
same,  forfeits  to  the  like  use,  the  sum  of  ten  dollars.  (Sees. 
6  and  7.) 

Any  person  is  authorized  to  arrest  a  person  found  trading  as 
a  hawker  and  pedlar,  without  license,  or  contrary  to  the  terms 
of  his  license,  or  who  shall  refuse  to  produce  his  license,  and 
convey  him  before  a  Justice  of  the  Peace  of  the  town  or  county 
whore  ho  shall  bo  apprehended.  It  is  also  made  the  duty  of  the 
overseers  of  the  poor  of  the  several  towns  of  the  state  to  enforce 
the  provisions  of  tiie  law,  in  the  manner  prescribed,  whenever 
any  violation  thereof,  within  their  respective  towns,  shall  come 
to  their  knowledge.     (Sec.  8.) 

It  may  be  deemed  the  safer,  and  will,  probably,  be  the  usual 


INTERNAL  POLICE  OF  THE  STATE.  377 

course,  to  proceed  by  complaint  and  warrant.     The  following 
forms  are  adapted  to  that  mode  of  prosecution  : 


FORM    OF    COMPLAINT. 

Tioga  County^  ss. — John  Smith,  being  duly  sworn,  makes 
oath  and  complains,  before  James  Bush,  one  of  the  Justices  of 
the  Peace  of  Owego,  in  said  county,  that,  on  the  first  day  of 
June,  instant,  he  found  John  Doe  travelling  and  trading  in  said 
town,  as  a  hawker  or  pedlar,  in  goods  of  the  manufacture  of  a 
foreign  country,  to  wit,  silks,  manufactured  in  France,  hnens, 
manufactured  in  Ireland,  &,c.,  [stating  thus,  some,  or  one  of  the 
articles  sold,  01^  exposed  for  sale,]  and  that  he  thereupon  demand- 
ed, from  the  said  John  Doe,  an  inspection  of  his  license  so  to 
trade,  but  that  said  John  Doe  confessed  to  the  said  John  Smith, 
that  he  had  not,  and  never  had,  such  license,  [or,  "  that  said 
John  Doe  did  not  and  would  not  produce  to  said  John  Smith 
such  license,"  or,  "that  said  John  Doe  so  travels  and  carries  said 
goods  2oith  an  horse,  when  it  appears  by  the  license,  which  he 
then  and  there  produced  to  said  John  Smith,  that  he  is  authori- 
zed so  to  travel  and  trade  on  foot  only  ;  or  other  violation  of  the 
terms  of  the  license,  as  the  case  may  he.\ 

John  Smith. 
Subscribed  and  sworn, 

June  2d,  1849,  before  me, 

James  Bush,  Justice. 

FORM    OF    WARRANT. 

Tioga  County,  ss. 

To  any  Constable  of  said  County,  Greeting : 
Whereas,  John  Smith  has  this  day  made  complaint,  on  oath 
before  me,  the  undernamed  Justice  of  the  Peace  of  Owego,  in 
said  county,  that  on  the  1st  day  of  June,  instant,  he  found  John 
Doe,  &c.,  [here  set  forth  the  complaint ;]  you  are,  therefore,  here- 
by commanded,  in  the  name  of  the  people  of  the  state  of  New 
York,  forthwith  to  apprehend  the  said  John  Doe,  and  bring  him 
before  me  at  my  office,  in  Owego,  aforesaid,  to  be  dealt  with  in 
the  premises,  according  to  law.  Given  under  my  hand  at 
Owego,  June  2,  1849. 

James  Bush,  Justice. 


378  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

When  the  offender  is  brought  before  the  Justice,  to  enforce 
the  penahy  for  refusing  to  produce  his  hcense,  the  facts  to  be 
estabhshed  to  warrant  the  conviction,  are  : — the  traveling  and 
selling,  or  exposing  to  sale^  foreign  goods,  and  the  refusal  to 
produce  a  license.  If  these  facts  are  established,  either  by  the 
confession  of  the  ofiender,  or  by  competent  testimony,  the  Justice 
should  make  a  record  of  the  conviction. 

FORM    OF    RECORD. 

Tioga  County,  ss. — Be  it  remembered,  that  John  Doe  has 
been  this  day  brought  before  me,  the  undernamed  Justice  of  the 
Peace  of  Owego,  in  said  county,  at  Owego,  aforesaid,  upon  my 
warrant  issued  upon  the  complaint  on  oath  of  John  Smith, 
wherein  the  said  Smith  made  oath,  and  complained  that  on  the 
first  day  of  June,  instant,  he  found  John  Doe,  &c.,  [here  set  forth 
the  complaint.'\  And  upon  the  appearance  of  tlie  said  John  Doe 
before  me,  as  aforesaid,  and  in  his  presence,  I  did  then  and  there 
proceed  to  make  inquiry  into  the  matters  in  said  com^Dlaint  al- 
leged ;  and  it  appearing  to  me  on  such  inquiry,  and  by  the  con- 
fession of  said  John  Doe,  [or,  "  by  the  oath  of  competent  wit- 
nesses before  me  sworn  and  examined,"]  that  the  said  John  Doe 
is  guilty  of  the  offence,  whereof  the  said  John  Smith,  in  his  com- 
plaint aforesaid,  informed  against  him,  he  is,  therefore,  before 
me,  duly  convicted  of  said  offence.  And  the  said  John  Doe  is 
by  me  adjudged,  in  pursuance  of  the  statute  in  siicli  case  made 
and  provided,  to  have  forfeited,  and  to  pay  for  his  said  offence, 
to  the  overseers  of  the  poor  of  said  town,  to  the  use  of  the  poor 
therein,  the  sum  often  dollars.     Dated  Owego,  June  3d,  1849. 

James  Bush,  Justice. 

If  the  offender,  after  duo  notice  of  his  conviction,  neglects  or* 
refuses  to  pay  the  penalty,  the  Justice  must  commit  him  to  jail 
for  the  term  of  one  month.     (1  R.  S.  708,  sec.  7.) 

FORM    OF    WARRANT    TO    COMMIT. 

Tioga  County^  ss. 

To  any  Constable  of  said  County,  Greeting: 
Whereas,  John  Doc  has  been  this  day  duly  convicted  before 
me,  the  undernamed  Justice  of  the  Peace  of  Owego,  in  said 
county,  of  the  olfencc  of  refusing,  contrary  to  the  form  and  effect 


INTERNAL  POLICE  OF  THE  STATE.  379 

of  the  statute  in  such  case  made  and  provided,  to  produce  to 
John  Smith  for  his  inspection,  on  the  first  day  of  June,  instant, 
at  Owego,  aforesaid,  who  then  and  there  demanded  the  same, 
his  license  as  a  hawker  and  pedlar,  the  said  John  Doe,  being  at 
the  time  of  said  demand,  traveling  from  place  to  place,  and  sel- 
ling goods  in  Owego  aforesaid,  of  the  manufacture  of  a  foreign 
country,  to  wit :  [state  some  of  the  goods  sold  oi-  exposed  to  sale  ;] 
whereby  the  said  John  Doe,  in  pursuance  of  the  statute  in  such 
case  made  and  provided,  was  by  me  adjudged  to  have  forfeited, 
and  to  pay  to  the  overseers  of  the  poor  of  Owego,  aforesaid,  to 
the  use  of  the  poor  therein,  the  sum  of  ten  dollars,  as  a  penalty 
for  his  said  offence  ;  and  the  said  John  Doe,  having,  after  due 
notice  of  his  said  conviction,  and  my  adjudication,  thereupon 
neglected  to  pay  said  penalty  :  You  are,  therefore,  hereby  com- 
manded, in  the  name  of  the  people  of  the  state  of  New  York,  to 
take  the  said  John  Doe,  and  convey  him  to  the  common  jail  of 
said  county,  the  keeper  whereof,  is  required  to  detain  him  in  his 
custody  in  said  jail,  for  the  term  of  one  month.  Given  under 
my  hand  at  Owego,  June  3d,  1849. 

James  Bush,  Justice. 

When  the  offender  is  brought  before  the  Justice,  to  enforce 
the  penalty  of  twenty-five  dollars  for  traveling  and  trading 
without  license,  or  contrary  to  the  terms  of  his  license,  and  the 
requisite  facts  are  proved,  either  by  the  confession  of  the  offender, 
or  by  the  testimony  of  competent  witnesses,  the  Justice  should 
make  a  record  of  the  conviction  ;  and  if  the  penalty,  with  the 
costs,  are  not  paid,  he  must  issue  his  warrant  to  collect  the  same 
of  the  goods,  wares,  and  merchandises,  of  the  offender.  (1  R. 
S.  709,  sec.  9.)  The  foregoing  form  of  a  record  of  conviction, 
may  serve  as  a  precedent. 

FORM    OF    WARRANT    TO    LEVY    PENALTY    AND    COSTS, 

Tiogo  County^  ss. 

To  any  Constable  of  said  County,  Greeting  : 
Whereas,  John  Doe  has  been  this  day  duly  convicted  before 
me,  the  undernamed  Justice  of  the  Peace  of  said  county,  of  the 
offence  of  traveling  and  selling  goods  of  the  manufacture  of 
a  foreign  country  without  license,  [or,  "  contrary  to  the  terms  of 
his  license,"]  contrary  to  the  form  and  effect  of  the  statute  in 


380  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

such  case  made  and  provided  ;  as  by  my  record  of  such  convic- 
tion remaining  before  me  at  Owego,  aforesaid,  will  more  fully 
appear ;  whereby  the  said  John  Doe  was  by  me  adjudged,  in 
pursuance  of  the  statute  in  such  case  made  and  provided,  to 
have  forfeited  and  to  pay  as  a  penalty  for  his  said  offence,  the 
sum  of  twenty-five  dollars,  and  became  also  liable  to  pay  the 
costs  of  his  said  prosecution  and  conviction,  amounting,  as  by 
me  adjudged,  to  the  sum  of  four  dollars  ;  which  penalty  and 
costs,  although  the  said  John  Doe  has  had  due  notice  thereof, 
remain  Avholly  unpaid  :  You  are,  therefore,  hereby  commanded, 
in  the  name  of  the  people  of  the  state  of  New  York,  to  levy  the 
said  penalty  and  costs  of  the  goods,  wares,  and  merchandise,  of 
the  said  John  Doe  ;  and  make  due  return  of  this  warrant,  and 
the  moneys  which  you  shall  so  levy,  to  me  at  Owego,  aforesaid, 
as  by  law  required.  Given  under  my  hand  at  Owego,  June  3d, 
1849. 

James  Bush,  Justice. 

The  penalty,  when  collected,  must  be  paid  by  the  Justice  to 
the  overseers  of  the  poor  of  the  town  where  the  offence  was  com- 
mitted.    (1  R.  S.  709,  sec.  9.) 

No  prosecution  can  be  maintained  for  any  offence  above  men- 
tioned, unless  prosecuted  for  within  sixty  days  after  the  com- 
mission of  the  offence.     (Id.  sec.  11.) 

13.   Of  Proceedings  for  the  Draining  of  Swamps ,  Marshes^ 
and  other  Low  Lands. 

When  the  owner  or  occupant  of  a  swamp,  bog,  meadow,  or 
other  low  land,  situated  in  any  county  except  Orange,  wishes 
to  drain  the  land,  and  deems  it  necessary  for  that  purpose,  that 
a  ditch  or  ditches  should  be  opened  through  the  lands  of  others, 
whose  consent  cannot  be  obtained,  he  may  apply  to  a  Justice  of 
the  town  where  the  lands  lie,  to  summon  a  jury  to  determine 
the  necessity  and  propriety  of  the  ditch  or  ditches,  assess  dam- 
ges,  (S6C.     (2  11.  S.  035,  sec.  1.) 

The  summons  must  be  directed  to  a  constable  of  the  town, 
requiring  him  to  summon  twelve  reputable  freeholders  not  in- 
terested in  tiic  lands,  nor  of  kin  to  eiliiorof  the  parlies,  to  appear 
on  the  premises,  at  a  tiiiu!  to  hi;  sjHMuficd  in  the  summons,  not 
less  than  ten  nor  more  than  twenty  days  from  the  date  thereof. 


INTERNAL  POLICE  OF  THE  STATE.  331 

The  summons  must  also  direct  the  constable  to  give  at  least  six 
days  notice  to  the  owner  of  the  lands,  of  the  lime  at  which  the 
jury  are  to  appear,     (Id.  sec.  2.) 

FORM    OF    SUMMONS. 

Town  of  Chenango,  ss : 

To  any  Constable  of  said  Town,  Greeting  : 

Whereas,  John  Doe  has  applied  to  me,  the  undernamed  Jus- 
tice of  the  Peace  of  the  said  town,  to  issue  this  precept,  repre- 
senting that  he  is  the  owner  (or  ''  is  in  possession")  of  a  certain 
swamp,  situated  on  the  farm  in  said  town,  whereon  he  resides  ; 
[or  other'  description,  as  the  case  may  he) — that  he  is  desirous 
of  draining  said  swamp,  and  deems  it  necessary  that  a  ditch 
should  be  opened  for  that  purpose,  through  lands  adjoining  to 
said  swamp  belonging  to  Richard  Roe  ;  and  that  said  Richard 
Roe  refuses  to  permit  the  opening  of  such  ditch  :  You  are, 
therefore,  hereby  commanded,  in  the  name  of  the  people  of  the 
state  of  New  York,  to  summon  twelve  reputable  freeholders, 
who  are  not  interested  in  the  said  lands,  nor  in  any  of  them, 
nor  in  any  wise  of  kin  to  either  of  the  parties,  to  be  and  appear 
on  the  premises,  on  the  15th  day  of  November,  instant,  at  two 
o'clock  in  the  afternoon,  to  make  a  jury  to  determine  on  the 
necessity  and  propriety  of  such  ditch,  and  to  assess  the  dama- 
ges, &c.  And  you  are  further  required  to  give  at  least  six 
days'  notice  to  the  said  Richard  Roe  of  the  time  at  which  said 
jury  are  to  appear. 

Given  under  my  hand  at  Chenango,  November  1st,  1848. 

William  Stow,  Justice. 

The  constable  must  summon  the  jurors,  and  make  return 
thereof,  as  in  a  civil  cause  ;  and  must  return,  also,  the  fact  of 
his  having  given  the  notice.     (2  R.  S.  635,  sec.  3.) 

The  Justice  must  attend  at  the  time  and  place  appointed, 
and  if  it  appear  that  due  notice  has  been  given,  and  if  twelve 
freeholders  appear,  he  must  administer  to  them  an  oath  or  affir- 
mation.    (Id.  sec.  4.) 

FORM    OF    OATH. 

"  You  swear,  in  the  presence  of  Almighty  God,  that  you  will 
well  and  truly  examine  and  certify,  in  regard  to  the  benefits  or 


382  DUTIES  OF  JUSTICES  OF   THE  PEACE. 

damages,  which  will  result  from  the  opening  of  the  ditch  now 
in  question." 

The  applicant  is  required  to  deliver  to  the  jury  a  map  of  the 
lands  through  which  the  ditch  is  proposed  to  be  made,  with  a 
particular  designation  thereon  of  the  plan,  length,  width,  and 
depth  of  the  ditch.  The  jury  must  personally  examine  the 
premises,  and  hear  any  reasons  that  may  be  offered  in  regard  to 
the  question  submitted  to  them.  The  jury  may,  if  they  think 
proper,  vary  the  plan  and  dimensions  of  the  ditch  ;  and,  in 
such  case,  must  designate  on  the  map,  the  alterations  made  by 
them.  The  jury  are  to  determine,  first,  whether  the  proposed 
ditch  is  necessary  or  proper,  either  as  designated  by  the  appli- 
cant on  the  map,  or  upon  any  other  plan  or  dimensions;  and 
secondly,  if  they  find  it  necessary,  they  must  assess  the  dama- 
ges of  the  owner  of  the  lands,  if  any,  and  in  making  the 
assessment,  they  must  take  into  consideration  the  benefits 
which  the  owner  of  the  lands  will  derive  from  the  construction 
of  the  ditch.     (2  R.  S.  635,  sees.  5,  6.) 

The  jury  must  next  make,  sign,  and  deliver  to  the  Justice,  if 
they  find  the  proposed  ditch  necessary,  their  inquisition  in  wri- 
ting. The  inquisition  will  be  abbreviated,  and  rendered  more 
explicit,  if  it  is  annexed  to  the  map ;  and  1  have,  therefore, 
drawn  the  following  form  with  reference  to  its  being  so  an- 
nexed. 

FORM    OF    INdUISITION. 

Town  of  Chenango,  ss. — We,  the  undersigned  freeholders, 
having  been  duly  summoned,  convened,  and  sworn  as  a  jury, 
by  and  before  William  Stow,  one  of  the  Justices  of  said  town, 
upon  the  application  of  John  Doe,  to  determine  the  necessity 
and  propriety  of  a  proposed  ditch,  which  said  John  Doe  is 
desirous  to  make  for  the  purpose  of  draining  a  swamp  on  his 
farm  in  said  town,  through  certain  lands  of  Richard  Roe — the 
plan,  length,  width  and  depth  of  which  ditch,  as  the  said  John 
Doe  claims  that  the  same  ought  to  be  constructed,  being  par- 
ticularly designated  on  the  annexed  map,  which  was  delivered 
to  us  by  the  said  John  Doc  ;  and  we  having  together  and  per- 
sonally examined  the  premises,  and  heard  the  reasons  offered 
in  regard  to  the  question  to  us  submitted,  and  taken  all  the  cir- 
cumstances into  consideration — do  hereby  certify,  that  we  are 


INTERNAL  POLICE  OF  THE  STATE.  383 

satisfied  that  the  opening  of  said  ditch  is  necessary  and  proper, 
in  the  manner,  on  the  plan,  and  of  the  dimensions,  in  the  an- 
nexed map  designated  ;  [or,  if  the  plan  is  altered  by  the  jury, 
"  in  the  manner,  on  the  plan,  and  of  the  dimensions  which  are 
particularly  designated  in  the  alteration  thereof,  by  us  made  in 
the  annexed  map  ;"]  and  we  assess  the  damages  which,  in  our 
judgment,  the  said  Richard  Roe  will  sustain  by  reason  of  the 
opening  of  said  ditch,  over  and  above  any  benefits  which  he 
may  receive  therefrom,  at  fifty  dollars,  [or,  "  and  we  further 
certify,  that  the  benefits  which  will  accrue  to  the  said  Richard 
Roe  from  the  opening  of  said  ditch,  will  be  equal  to  any  dama- 
ges which  he  will  sustain  thereby."] 

In  witness  whereof  we  have  set  our  hands  to  this  inquisition, 
this  15th  day  of  November,  1848. 

A.  B.  ^ 

C.  D.  >  Jurors. 

E.  F.  (fcc.  ) 

The  Justice  must  then  certify  the  inquisition  to  have  been 
taken  before  him,  which  he  may  do  by  endorsement,  thus  : — 
(2  R.  S.  636,  sec.  10.) 

"  I  certify  that  the  within  inquisition  was  taken  before  me 
this  15th  day  of  November,  1848. 

"  William  Stow,  Justice." 

The  Justice  must  file  the  map  and  inquisition  so  certified,  in 
the  town  clerk's  office.     (Id.) 

After  the  inquisition  shall  have  been  delivered  to  the  Justice, 
and  the  applicant  has  paid  the  damages  and  costs  of  the  pro- 
ceedings, or  the  costs,  where  no  damages  were  allowed,  he  may 
enter  on  the  lands  and  open  the  ditch,  &c.     (Id.  sec.  7.) 

14.  Preservation  of  Public  Health. 

It  is  provided,  that  any  two  Justices  of  the  Peace  in  any 
town  in  the  state,  may  cause  all  persons  who  are  sick  of  any 
infectious  or  pestilential  disease,  and  not  being  residents  of  such 
town,  by  an  order  in  writing,  to  be  removed  to  such  place  of 
safety  within  the  town  as  they  may  deem  necessary  for  the 
preservation  of  the  public  health.     (1  R.  S.  508,  sec.  22.) 


384  DUTIES  OF  JUSTICES  OF  THE  PEACE. 

FORM    OF    ORDER. 

Chenango  County, 


Town  of  Oxford,      ' 

Whereas  we,  the  undersigned,  two  of  the  Justices  of  the 
Peace  of  the  town  of  Oxford,  county  aforesaid,  have  ascer- 
tained that  VYilHam  Freeman,  who  is  not  a  resident  of  said 
town,  is  now  lying  sick  of  an  infectious  disease,  beUeved  to  be 
small  pox,  at  the  Farmers  Hotel  in  said  town,  and  we  deem  his 
immediate  removal  therefrom  necessary  for  the  preservation  of 
the  public  health  ;  and  whereas,  upon  due  inquiry,  we  have 
ascertained  that  John  Brown  is  willing  to  receive  and  take  care 
of  said  William  Freeman,  at  his  dwelling  house  in  said  town  : 
Now,  therefore,  by  virtue  of  the  authority  vested  in  us  by  sta- 
tute, we  do  hereby  order  and  empower  the  said  John  Brown, 
and  all  others  whom  he  may  call  to  his  aid  and  assistance,  to 
remove  the  said  William  Freeman  to  the  dwelling  house  of  the 
said  John  Brown,  without  delay,  there  to  be  kept  until  he 
recover,  or  until  our  further  order. 

Given  under  our  hands  at  Oxford  aforesaid,  July  1st,  1849. 

David  Long,       )  ^ 

T  T  \  Justices. 

James  Jackson,  \      ^ 


CHAPTER    XVII. 

LANDLORD      AND      TENANT. 

I  SHALL  treat  the  subjects  of  this  chapter  under  the  following 
heads : — 

1.  The  Relation  of  Landlord  and  Tenajit. 

2.  Proceedings  hy  Landlord  to  dispossess  Tenant  after  the 

expiration  of  his  Term. 

3.  Proceedings  to  turn  Tenant  out  for  non-payment  of  Rent. 

4.  Proceedings  where  Preinises  are  deserted  by  Tenant. 

5.  Proceedings  in  cases  of  forcible  Entry  and  Detainer, 

1.    The  Relation  of  Landlord  and  Tenant. 

The  relation  of  landlord  and  tenant  exists  whenever  there  is 
a  contract  for  the  possession  and  profits  of  lands  and  tenements 
on  the  one  side,  and  a  recompense  for  rent  on  the  other.  The 
contract  is  called  a  lease  or  demise.  (2  Blk.  Com.  317.)  When 
the  agreement  is  under  seal,  its  stipulations  are  called  covenants. 
The  lease  must  be  for  a  shorter  space  of  time  than  he  who  lets 
it  himself  has  it  for ;  for  if  he  part  with  his  whole  interest,  it  is 
more  properly  an  assignment  than  a  lease.  (Id.)  By  the  con- 
stitution of  this  state,  no  lease  or  grant  of  agricultural  land,  for 
a  longer  period  than  twelve  years,  in  which  is  reserved  any  rent 
or  service  of  any  kind,  is  valid.     (Cons.  art.  1,  sec.  14.) 

A  lease  for  one  year,  or  less,  by  verbal  agreetnetit,  is  good. 
(2  R.  S.  194,  sec.  6.)  The  statute,  however,  declares  that  every 
lease  for  a  longer  period  than  a  year  shall  be  void,  unless  the 
contract  or  some  note  or  memorandum  thereof,  expressing  the 
consideration,  be  in  writing,  and  be  subscribed  by  the  party  by 
whom  the  lease  is  made,  or  by  his  authorized  agent.  (Id.  sees. 
8  and  9.)  When  a  party  enters  into  possession  without  any 
agreement,  it  is  generally  considered  a  taking  from  year  to  year. 

No  particular  form  of  words  is  necessary  to  create  a  lease. 
Any  expressions  showing  the  intentions  of  the  parties  that  one 
should  divest  himself  of  the  possession  of  the  premises  and  the 

25 


386  LANDLORD  AND  TENANT. 

Other  come  into  it,  for  a  certain  space  of  time,  is  sufficient.  Nor 
is  it  necessary  that  the  lessor  be  in  possession  of  the  premises, 
if  he  have  the  undisputed  right  to  them. 

A  tenant  has  a  right  to  underlet  as  long  as  his  interest  lasts, 
unless  he  has  agreed  with  his  landlord  not  to  do  so.  Verbal 
explanations  cannot  vary  an  agreement  in  writing,  whatever  it 
may  be.  The  landlord  cannot  therefore  aver  that  the  tenant 
agreed  to  pay  taxes,  re-build  in  case  of  fire,  repair,  or  that  he 
would  not  underlet  or  assign  his  lease  without  the  landlord's 
consent,  unless  it  is  so  stated  in  the  lease. 

Agreements  for  the  occupation  of  lands  or  tenements  in  the 
city  of  New  York,  which  do  not  particularly  specify  the  dura- 
tion of  such  occupation,  will  be  deemed  valid  until  the  first  day 
of  May  next,  after  the  possession  under  such  agreement  shall 
have  commenced  ;  and  the  rent  under  such  agreement  will  be 
payable  at  the  usual  quarter  days  for  the  payment  of  rent  in 
the  said  city,  unless  otherwise  expressed  in  the  agreement.  (2 
R.  S.  29.) 

A  mere  agreement  for  a  lease^  which  is  not  to  commence 
within  a  year,  must  be  in  writing.     (Id.  195,  sec.  2.) 

landlord's  contract. 

This  is  to  certify  that  I  have,  this  first  day  of  April,  1849,  let 
and  rented  unto  William  Stow  my  house  and  lot,  known  as 
"The  Cottage,"  in  Church  street,  in  the  village  of  Binghamton, 
with  the  appurtenances,  and  the  sole  and  uninterrupted  use  and 
occupation  thereof  for  one  year,  to  commence  on  the  first  day  of 
May  next,  at  the  yearly  rent  of  one  hundred  dollars,  payable 
quarterly  on  the  usual  quarter  days  ;  rent  to  cease  in  case  the 
premises  are  destroyed  by  fire.     The  taxes  to  be  paid  by  me. 

James  Hawley. 

tenant's  contract. 

Tliis  is  to  certify  that  I  have  hired  and  taken  from  Mr.  James 
Ilawley  his  house  and  lot,  known  as  "The  Cottage,"  in  Church 
street,  in  the  village  of  IJinghamton,  with  the  appurtenances,  for 
the  term  of  one  year,  to  commence  the  first  day  of  May  next, 
at  the  yearly  rent  of  one  hundred  dollars,  payable  quarterly  on 
the  usual  quarter  days.  And  I  do  hereby  promise  to  make 
punctual  payment  of  the  rent  in  manner  aforesaid,  except  in 


LANDLORD  AMD  TENANT.  387 

case  the  premises  become  imtenantable  from  fire  or  any  other 
cause,  when  the  rent  is  to  cease  ;  and  do  further  promise  to  quit 
and  surrender  the  premises,  at  the  expiration  of  the  term,  in  as 
good  state  and  condition  as  reasonable  use  and  wear  thereof 
will  permit,  damages  by  the  elements  excepted.  Given  under 
my  hand  the  first  day  of  April,  1849. 

William  Stow. 

SECURITY    for    RENT. 

In  consideration  of  the  letting  of  the  premises  above  described, 
and  for  the  sum  of  one  dollar,  to  me  in  hand  paid,  I  do  hereby 
become  surety  for  the  punctual  payment  of  rent  and  perform- 
ance of  the  stipulations  in  the  above  written  agreement  men- 
tioned, to  be  paid  and  performed  by  WiUiam  Stow  as  therein 
specified  and  excepted ;  and  if  any  default  shall  be  made 
therein,  I  do  hereby  promise  and  agree  to  pay  unto  the  said 
James  Hawley  such  sum  or  sums  of  money  as  will  be  sufficient 
to  make  up  such  deficiency,  and  fully  satisfy  the  conditions  of 
the  said  agreement,  without  requiring  any  notice  of  non-pay- 
ment, or  proof  of  demand  being  made.  Given  under  my  hand, 
the  1st  day  of  April,  1849. 

Henry  Lynch. 

If  the  rent  is  secured  by  a  mortgage  upon  furniture  or  other 
personal  property,  the  tenant  should  be  required  to  add  to  or  en- 
dorse upon  the  lease  the  following  : — 

I  do  hereby  mortgage  and  pledge  the  following  articles  of 
household  furniture  [or  as  the  case  may  be  ;  describing  each 
article  so  that  it  can  be  identified]  to  the  faithful  performance 
of  the  foregoing  [or  within]  agreement ;  hereby  authorizing  the 
said  James  Hawley,  or  his  assigns,  to  levy  upon  and  sell  the 
same,  in  case  of  any  failure  on  my  part  to  perform  the  said 
agreement,  or  any  part  of  the  same.  Given  under  my  hand,  the 
1st  day  of  April,  1849. 

William  Stow. 

ANOTHER    form    OF    SECURITY. 

In  consideration  of  the  letting  of  the  above  described  prem- 
ises, and  of  one  dollar  to  me  paid,  I  do  hereby  promise  and 
bind  myself  that  the  said  William  Stow  shall  pay  the  rent  and 


388  LANDLORD  AND  TENANT. 

perform  the  above  lease  or  agreement,  on  his  part,  in  all  respects. 
Given  under  my  hand,  this  1st  day  of  April,  1849. 

William  Power. 


LEASE  OF  A  HOUSE  FOR  FIVE  YEARS. 

This  indenture,  made  the  1st  day  of  March,  1849,  between 
John  Doe,  of  the  village  of  Owego,  county  of  Tioga,  of  the  first 
part,  and  Richard  Roe,  of  the  same  place,  of  the  second  part : 
Witnesseth  that  the  said  party  of  the  first  part  hath  let,  and  by 
these  presents  doth  grant,  demise  and  to  farm  let,  unto  the  said 
party  of  the  second  part,  his  executors,  administrators  and  as- 
signs, all  that  stone  house,  messuage  or  tenement,  with  all  and 
singular  its  appurtenances,  situate,  standing  and  being  on  Water 
street,  in  the  village  of  Owego  aforesaid,  known  as  number  42  ; 
to  have  and  to  hold  the  said  premises,  with  the  appurtenances, 
unto  the  said  Richard  Roe,  his  executors,  administrators  and 
assigns,  for  the  term  of  five  years  from  the  first  day  of  May, 
1849,  at  the  yearly  rent  or  sum  of  two  hundred  and  fifty  dol- 
lars, to  be  paid  in  equal  quarter  yearly  payments,  as  long  as  the 
said  premises  are  in  good  tenantable  condition.  And  it  is  agreed 
that  if  any  rent  shall  be  due  and  unpaid,  or  if  default  shall  be 
made  in  any  of  the  covenants  herein  contained,  then  it  shall  be 
lawful  for  the  said  party  of  the  first  part  to  re-enter  the  said 
premises. 

And  the  said  party  of  the  second  part  doth  hereby  covenant 
to  pay  the  said  party  of  the  first  part  the  said  yearly  rent  as 
herein  specified,  save  and  except  at  all  times  during  the  said 
term  such  proportional  part  of  the  said  yearly  rent  as  shall  grow 
due  during  such  time  as  the  said  house  shall,  without  ihe  hin- 
drance of  the  said  party  of  the  second  part,  be  and  remain  un- 
tenantable, by  reason  of  accidental  fire.  And  the  said  Riciiard 
Roe,  his  executors,  administrators  and  assigns,  shall  and  will, 
during  the  said  term,  at  his  own  pioper  costs  and  charges,  well 
and  suflicicntly /i-ec7>  in  repair  the  said  demised  premises,  when 
and  as  often  as  the  same  shall  require  [damages  by  fire  only  ex- 
cepted.] And  at  the  expiration  of  the  said  term,  the  said  party 
of  the  second  part  will  quit  and  surrender  the  premises  hereby 
demised  in  as  good  state  and  condition  as  reasonable  use  and 
wear  thereof  will  i)crmit,  damages  by  fire  only  excepted.  And 
also  that  the  said  party  of  the  second  part,  his  executors,  admin- 


LANDLORD  AND  TENANT.  389 

istrators  and  assigns,  shall  and  will,  during  the  said  term,  pay 
and  discharge  all  taxes,  assessments  and  other  charges  which 
shall  be  taxed,  assessed  or  charged  upon  the  said  premises,  or 
any  part  thereof. 

And  the  said  party  of  the  first  part  doth  covenant  that  the 
said  party  of  the  second  part,  on  paying  the  said  yearly  rent, 
and  performing  the  covenants  aforesaid,  shall  and  may,  peace- 
ably and  quietly,  have,  Viold  and  enjoy  the  said  demised  prem- 
ises for  the  term  aforesaid.  And  also  in  case  the  premises  are 
destroyed  by  accidental  fire,  the  said  party  of  the  first  part,  his 
executors,  administrators  or  assigns,  shall  forthwith  proceed  to 
re-build  or  repair  the  said  premises,  and  put  them  in  as  good 
condition  as  they  were  before  the  fire  ;  and  that  until  such 
repairs  are  made  and  completed,  the  rent  shall  cease. 

In  witness  whereof,  the  parties  to  these  presents  have  hereun- 
to set  their  hands  and  seals,  the  day  and  year  first  above  men- 
tioned. 

John  Doe,  [l.  s.] 
Richard  Roe,  [l.  s.] 
Sealed  and  delivered  in  presence  of 
Robert  Doyle. 

There  must  be  some  time  specified,  or  event  referred  to  in  a 
lease,  for  its  duration,  or  it  will  be  void  ;  a  lease  for  so  many 
years  as  a  certain  perso7i  shall  live,  no  certain  number  of  years 
being  mentioned,  and  it  being  uncertain  how  long  such  person 
will  live,  is  void  for  uncertainty.  But  if  it  be  for  twenty  years, 
provided  such  a  person  live  so  long,  it  is  good  ;  though  it  termi- 
nates on  his  death.  If  a  person  having  an  interest  for  five 
years,  make  a  lease  for  six,  though  it  exceeds  his  authority,  it  is 
good  for  the  five  years. 

There  is,  however,  a  species  of  lease  where  no  certain  time  is 
mentioned,  which  continues  during  the  pleasure  of  the  parties, 
the  lessee,  in  such  case,  is  called  a  tenant  at  will.  There  is 
also  another  similar  to  this,  called  a  tenancy  at  sufferance ;  this 
happens  when  a  man  takes  a  lease  for  a  year  or  more,  and,  af- 
ter his  term  has  expired,  continues  to  hold  the  premises  without 
any  new  lease  from  the  owner.  The  difference  between  ten  an 
at  will.,  and  tenant  at  sufferance^  is,  that  the  tenant  at  will  holds 
by  right,  whereas,  tenant  by  sufferance  enters  by  a  lawful 
ease,  and  holds  over  by  wrong.     It  is  now  settled,  however, 


390  LANDLORD  AND  TENANT. 

that  where  there  is  no  limitation  as  to  the  time  which  the  te- 
nant is  to  occupy  the  premises,  (he  tenancy  shall  be  from  year 
to  year,  not  determinable  at  the  will  of  either  party  ;  nor  even 
at  the  end  of  the  current  year,  unless  a  notice  in  writing  is  re- 
gularly served. 

If,  upon  the  expiration  of  a  lease,  the  tenant  holds  over  by 
consent  of  parties,  the  law  implies,  that  he  holds  on  the  former 
terms,  and  the  parties  are  supposed  to  have  renewed  their  agree- 
ment for  at  least  another  year.  In  case  of  a  tenancy  for  a  year, 
or  any  other  definite  period,  no  notice  to  quit  is  necessary  ;  but 
in  all  other  cases,  it  is  ;  and  a  tenant  for  a  year,  holding  over, 
so  as  to  create  a  tenancy  at  will,  is  entitled  to  notice  before  he 
can  be  ejected. 

To  put  an  end  to  a  tenancy  at  will  or  sufterance,  thirty  days 
notice,  in  writing,  must  be  given.     (2  R.  S.  30,  sec.  7.) 

FORM    OF    NOTICE. 

To  Richard  Roe  : 

Sir, — This  is  to  notify  you,  that  you  are  required  to  surren- 
der possession  of  the  house  and  lot,  [he?'e  insert  a  brief  descrip- 
tion of  the  premises^']  which  you  now  hold  of  me,  and  to  remove 
therefrom  on  the  5th  day  of  June  next.  Dated  this  6th  day  of 
May,  1849. 

Yours,  &c., 

John  Doe,  Landlord. 

The  notice  must  be  served  by  delivering  the  same  to  the  te- 
nant, or  to  some  person  of  proper  age  residing  on  the  premises  ; 
or,  if  the  tenant  cannot  be  found,  and  there  is  no  such  person 
residing  on  the  premises,  such  notice  may  be  served  by  affixing 
the  same  on  a  conspicuous  part  of  the  premises,  where  it  may 
be  conveniently  read.  (Id.  sec.  8.)  At  the  expiration  of  the 
thirty  days,  from  the  service  of  the  notice,  the  landlord  may 
re-enter,  or  proceed  in  the  manner  prescribed  by  law  to  remove 
such   tenant,  without  any  further  or  other  notice  to  quit.  (Id. 

sec.  9.) 

TJie  landlord  usually  covenants  that  the  tenant  shall  have 
the  (jnict  enjoyment  and  possession  of  the  premises  during  his 
lorni.  Under  such  a  covenant,  the  landlord  is  not  answerable 
to  the  tenant,  unless  he  has  been  actually  evicted  by  some  per- 
son claiming  legal  title     If  the  tenant  is  turned  out  by  one 


LANDLORD  AND  TENANT.  39,| 

who  has  no  title,  it  is  a  trespass,  and  his  remedy  is  against 
the  wrong  doer,  and  not  against  the  landlord.  (3  J.  R.  471. 
5  id.  120.) 

It  is  also  implied,  that  the  tenant  shall  have  the  free  use  of 
the  premises.  Where,  therefore,  the  lessor  enters  wrongfully 
into  part  of  the  demised  premises,  the  tenant  is  discharged  from 
the  payment  of  the  whole  rent,  until  he  is  restored  to  the  whole 
possession.  (4  Wen.  423.)  Or  the  tenant  may  retain  posses- 
sion of  the  remaining  part  of  the  premises,  and  sue  the  land- 
lord for  the  damages  sustained.  Where  a  tenant  is  thus  evicted, 
the  presumption  of  law  is,  that  he  continues  out  of  possession  ; 
such  presumption  may,  however,  be  rebutted  by  proof  that  he 
was  subsequently  restored  to  the  possession.     (4  Wen.  423.) 

Legal  eviction  of  the  tenant,  by  a  third  person,  excuses  the 
payment  of  rent.  So  any  eviction  by  the  lessor.  If  the  evic- 
tion is  partial,  by  a  third  person,  the  rent  will  be  apportioned  ; 
but  a  partial  eviction  by  the  lessor,  excuses  from  the  payment  of 
the  whole  rent.  (8  Cow.  727.  4  id.  581.)  A  lessor,  erecting 
an  intolerable  nuisance,  so  as  to  deprive  the  lessee  of  his  enjoy- 
ment, would  be  equivalent  to  an  expulsion.     (Id.) 

Where  the  lessor  was  guilty  habitually  of  bringing  lewd  wo- 
men under  the  same  roof  with  the  demised  premises,  though  in 
an  apartment  not  demised,  by  which  nightly  noise  and  distur- 
bance were  made  ;  and  in  consequence,  the  lessee  quitted  the 
premises,  and  remained  away  with  his  family  ;  held,  that  this 
was  evidence  to  go  to  a  jury,  under  the  plea  of  eviction  by  the 
landlord  ;  and  that  the  jury  might,  upon  such  evidence,  find 
the  plea  true  ;  and  the  lessor  would  thereby  be  barred  of  his 
rent  the  same  as  on  an  actual  or  physical  entry  and  expulsion 
of  the  tenant.     (Id.) 

Taxes  must  be  paid  by  the  landlord,  when  the  lease  is  silent 
on  the  subject,  and  if  the  tenant  pay  them,  he  will  have  a  right 
to  deduct  them  from  the  rent.  All  public  charges  must  be  paid 
by  the  landlord,  except  such  as  the  tenant  has  expressly  agreed 
to  pay. 

A  tenant  from  year  to  year,  unless  he  agrees  to  do  so,  is  not 
bound  to  make  lasting  or  general  repairs  ;  he  is  impliedly  liable 
to  repair  only  what  he  has  broken  or  injured.  He  must  also  re- 
pair so  far  as  to  prevent  waste  and  decay,  when  it  can  be  easily 
done.  He  must  not  destroy  any  ornamental  or  fruit  trees, 
shrubbery,  &c.,  and  must  cultivate  the  soil  so  as  not  to  do  it 


392  LANDLORD  AND  TENANT. 

any  permanent  injury.  These  duties  fall  upon  the  tenant,  with- 
out any  express  agreement,  and  a  breach  of  them  will,  in  gene- 
ral, render  him  liable  for  waste.  A  tenant  cannot  recover  of 
his  landlord,  for  repairs  done  by  him  to  the  demised  premi- 
ses, unless  there  is  a  special  agreement  by  the  latter,  to  pay 
for  them.     (6  Cow.  473.) 

The  tenant  is  permitted  to  take  down  and  carry  away,  provi- 
ded he  does  so  before  the  lease  expires,  all  such  fixtures  as  he 
himself  has  erected,  which  are  merely  ornamental,  or  for  his  do- 
mestic convenience.  The  character  of  the  property,  whether 
personal  or  real,  in  respect  to  fixtures,  is  governed  very  much  by 
the  intention  of  the  owner,  and  the  purposes  to  which  the  erec- 
tion was  to  be  applied.  Thus,  things  set  up  by  a  lessee,  in  re- 
lation to  his  trade,  as  vats,  coppers,  tables,  and  partitions,  belong- 
ing to  a  soap  boiler,  may  be  removed  during  the  term.  The 
tenant  may  take  away  chimney  pieces,  and  even  wainscot,  if 
put  up  by  himself;  or  a  cider  mill  and  press,  erected  by  him  on 
the  land,  or  a  pump,  erected  by  him,  if  removable,  without  ma- 
terial injury  to  the  freehold.  So,  a  building  resting  upon  blocks, 
and  not  let  into  the  soil,  has  been  held  a  mere  chattel.  A  post 
wind  mill  erected  by  the  tenant,  and  machinery  for  spinning 
and  carding,  though  nailed  to  the  floor,  and  copper  stills,  and 
distillery  apparatus,  and  potash  kettles,  though  fixed  and  set  on 
arches,  are  held  to  be  personal  property.  On  the  other  hand, 
iron  stoves,  fixed  to  the  brick  work  of  the  chimneys  of  a  house, 
have  been  adjudged  to  pass  with  the  house  as  part  of  the  free- 
hold, in  a  case  where  the  house  was  set  off  on  execution  to  a 
creditor.  Between  landlord  and  tenant,  the  claim  to  have  arti- 
cles considered  as  personal  property,  is  received  with  the  great- 
est latitude  and  indulgence.  The  right  of  removal,  in  all  cases, 
will  depend  upon  the  mode  of  annexation  of  the  article,  and 
the  effect  which  the  removal  would  have  upon  the  premises.  (2 
Kent,  342,  343.) 

If  the  landlord,  after  leasing,  sell  the  property,  the  purchaser 
has  all  the  benefit  of  the  lease,  and  all  the  remedies,  by  entry, 
action,  (fcc,  that  the  landlord  had. 

Assigjimejits. 

An  assignment  is  properly  a  transfer,  or  making  over  to  ano- 
ther, the  right  one  has  in  anp  estate  ;  but  it  is  usually  applied 
to  an  estate  for  life  or  years.     The  difference  between  an  assign 


LANDLORD  AND  TENANT.  393 

ment  and  a  lease,  is,  that,  by  a  lease,  one  grants  an  interest  less 
than  his  own  ;  in  assignments,  he  parts  with  the  whole  proper- 
ty, and  the  assignee  stands,  to  all  intents  and  purposes,  in  the 
place  of  the  assignor.     (2  Blk.  Com.  262.) 

In  assigning  a  lease,  the  assignment  should  be  endorsed  on 
the  lease. 

FORM    OP   ASSIGNMENT. 

For  value  received,  I  hereby  assign  and  transfer  the  within 
instrument  of  lease  and  term  of  years  therein  mentioned  and 
contained,  and  all  my  right,  title,  and  interest  therein,  to  John 
Smith,  subject,  however,  to  all  the  payments,  reservations,  and 
agreements  therein  contained. 

Dated  this  1st  day  of  June,  1849. 

Richard  Roe. 

The  assignee  is  liable  only  while  he  continues  to  be  the  legal 
assignee — that  is,  while  he  remains  in  possession  under,  or  by 
virtue  of,  the  assignment ;  so  that  he  is  not  chargeable  for  a 
breach  of  covenant  previous  to  the  assignment  to  him. 

2.  Proceedings  hy  Landlord  to  Dispossess  Te7iant  after  the 
Expiration  of  his  Term. 

Any  tenant,  or  lessee  at  will,  or  at  sufferance,  or  for  any  part 
of  a  year,  or  for  one  or  more  years,  of  any  houses,  lands,  or  tene- 
ments, and  the  assigns,  under  tenants  or  legal  representatives  of 
such  tenant  or  lessee,  may  be  removed  from  such  premises  by 
any  Judge  of  the  county  courts  of  the  county,  or  by  any  Justice 
of  the  Peace  of  the  city  or  town  lohere  the  preinises  are  situa- 
ted^ or  by  any  mayor  or  recorder  of  the  city  where  such  premi- 
ses are  situated,  or,  in  the  city  of  New  York,  by  the  mayor,  re- 
corder, any  Justice  of  the  Marine  Court,  or  any  one  of  the  Jus- 
tices of  the  Justices'  Courts  of  the  city  of  New  York,  in  the  man- 
ner hereinafter  prescribed  in  the  following  cases :  (Laws  1849, 
ch.  193.) 

1.  Where  such  person  shall  hold  over  and  continue  in  pos- 
session of  the  demised  premises,  or  any  part  thereof,  after  the 
expiration  of  his  term  without  the  permission  of  the  landlord. 

2.  Where  such  person  shall  hold  over  without  such  permis- 
sion as  aforesaid,  after  any  default  in  the  payment  of  rent,  pur- 
suant to  the  agreement  under  which  such  premises  are  held, 


394  LANDLORD  AND  TENANT. 

and  a  demand  of  such  rent  shall  have  been  made,  or  three  days 
notice  in  writing,  requiring  the  payment  of  such  rent,  or  the  pos- 
session of  the  premises,  shall  have  been  served  by  the  person 
entitled  to  such  rent,  on  the  person  owing  the  same,  in  the  man- 
ner prescribed  for  the  service  of  the  summons.     (Vide  post.) 

3.  Where  the  tenant  or  lessee  of  a  term  of  three  years  or  less, 
shall  have  taken  the  benefit  of  any  insolvent  act,  or  been  dis- 
charged under  any  act  for  the  relief  of  his  person  from  impris- 
onment during  such  term. 

4.  Where  any  person  shall  hold  over  and  continue  in  posses- 
sion of  any  real  estate  which  shall  have  been  sold  by  virtue  of 
an  execution  against  such  person,  after  a  title  under  such  sale, 
shall  have  been  perfected. 

Any  landlord  or  lessor,  his  legal  representatives,  agents,  or  as- 
signs, may  make  oath  in  writing,  of  the  facts  which,  according 
to  the  foregoing,  authorize  the  removal  of  a  tenant,  describing 
therein  the  premises  claimed  ;  and  may  present  the  same  to  one 
of  the  officers  in  the  above  section  specified. 


FORM  OF  LANDLORD  S    AFFIDAVIT    OF    THE    HOLDING    OVER    OF 
TENANT    AT    SUFFERANCE. 

Chenango  County^  ss. — ^James  Brown,  of  the  town  of  Oxford, 
in  said  county,  being  duly  sworn,  says,  that  on  or  about  the  1st 
day  of  June,  1848.  this  deponent  demised  unto  John  Barns,  a 
certain  lot  of  land,  \jiere  describe  the  jyj-emlses,]  for  the  term  of 
one  year  from  the  first  of  the  next  July,  which  said  term  has 
expired,  and  that  the  said  John  Burns  holds  over,  and  continues 
in  possession  of  the  premises,  without  the  permission  of  this  de- 
ponent. 

James  Brown. 
Subscribed  and  sworn,  this  5th  day 
of  July,  1849,  before  me, 

A.  B.  Ketch  AM, 
Judge  of  Chenango  County. 

'I'((:liiji<;il  accuracy  in  the  statements  of  the  foregoing  affida- 
vit arc  not  required.  Facts,  however,  must  be  set  forth  suffi- 
cient to  make  out  a  case  within  the  statute. 

On  receiving  such  affidavit,  such  ollundcr  shall  issue  his  sum- 


LANDLORD  AND  TENANT.  395 

mons,  describing  the  premises  of  which  possession  is  claimed, 
and  requiring  any  person  in  possession  of  the  said  premises,  or 
claiming  the  possession  thereof,  forthwith  to  remove  from  the 
same  ;  or  to  show  cause  before  said  magistrate  on  the  same  day, 
or  within  such  time  as  shall  appear  reasonable,  not  less  than 
three  nor  more  than  five  days,  why  possession  of  the  said  prem- 
ises should  not  be  delivered  to  such  applicant.  (2  R.  S.  604, 
sec.  30.) 

Previous  to  issuing  such  summons  in  the  case  of  a  tenancy  at 
will,  or  at  sufferance,  the  magistrate  shall  be  satisfied  by  afiida- 
vit,  that  such  tenancy  has  been  terminated,  by  giving  notice  in 
the  manner  prescribed  by  law.  And  if  application  be  made  for 
such  summons  to  be  served  on  any  person  holding  over  real  es- 
tate, which  shall  have  been  sold  on  execution,  the  magistrate 
shall,  in  like  manner,  be  satisfied  that  a  demand  of  the  posses- 
sion of  such  premises  has  been  made.     (Id.) 

The  notice  spoken  of  in  the  preceding  section  of  the  statute, 
must  be  one  month's  notice  in  writing  to  the  tenant,  requiring 
him  to  remove  from  the  premises.     (2  R.  S.  30,  sec.  7.) 

Such  notice  shall  be  served,  by  delivering  the  same  to  such 
tenant,  or  to  some  person  of  proper  age,  residing  on  the  premi- 
ses ;  or,  if  the  tenant  cannot  be  found,  and  there  be  no  such  per- 
son residing  on  the  premises,  such  notice  may  be  served  by  af- 
fixing the  same  on  a  conspicuous  part  of  the  premises,  where  it 
may  be  conveniently  read.     (Id.  sec.  8.) 

NOTICE    TO    TENANT,    OF    TERMINATION    OF    TENANCY    AT 
WILL,  OR    AT    SUFFERANCE. 

To  Mr.  Robert  Doyle  : 

Sir  :  This  is  to  inform  you  that  you  are  required  to  remove 
from  the  premises  now  occupied  by  you  as  tenant  at  will,  [or  at 
sufferance,]  to  me,  situate  in  the  town  of  Sherburne,  county  of 
Chenango,  to  wit :  \here  describe  premises,]  at  the  expiration  of 
one  month  from  the  service  of  this  notice  upon  you.  Dated 
Sherburne,  July  1st,  1849. 

Alvin  Hunt. 

affidavit  of  service  of  notice. 

•Jhenmigo  County,  ss. — Alfred  Wheeler,  of  Sherburne,  in  said 
county,  being  duly  sworn,  says,  that  on   the   1st  day  of  July 


396  LANDLORD  AND  TENANT. 

1849,  he  served  a  notice,  of  which  the  annexed  is  a  copy,  upon 
Robert  Doyle,  by  deUvering  said  notice  to  said  Doyle  personally, 
[or,  if  service  was  made  in  either  of  the  other  modes  permitted 
by  statute,  so  state.] 

Alfred  Wheeler. 
Sworn  before  me  this  3d  day 
of  August,  1849. 

KoBERT  Morris,  Justice. 

^AFFIDAVIT    OF    TERMINATION    OF    TENANCY    AT    WILL,    AND 
HOLDING    OVER    BY    TENANT. 

Chenango  County,  ss. — Alvin  Hunt,  of  said  county,  being 
duly  sworn,  says,  that  on  or  about  the  1st  day  of  September, 
1848,  he  did  demise  and  lease  to  Robert  Doyle,  of  said  county, 
for  and  during  the  will  and  pleasure  of  this  deponent,  certain 
premises  situate  in  the  town  of  Sherburne,  county  of  Chenango, 
to  wit :  [here  describe  the  premises.'] 

Deponent  further  says,  that  the  said  Robert  Doyle  has,  ever 
since  the  aforesaid  1st  day  of  September,  1848,  up  to  and  until 
the  termination  of  said  tenancy,  as  hereinafter  mentioned,  con- 
tinued in  the  possession  and  occupation  of  said  premises,  as  ten- 
ant at  will  to  this  deponent,  and  that  said  tenancy  has  been  ter- 
minated by  deponent's  giving  one  month's  notice  in  writing  to 
said  Doyle,  requiring  him  to  remove  from  the  premises  aforesaid, 
as  appears  by  the  copy  of  said  notice,  and  the  affidavit  of  the 
service  of  the  same,  hereunto  annexed. 

Deponent  further  says,  that  the  said  Robert  Doyle  has  not  yet 
removed  from  said  premises,  as  required  by  the  said  notice,  but 
that  he  holds  over  and  continues  in  possession  of  the  same  after 
the  expiration  of  his  said  term  therein,  without  the  permission 
of  this  deponent. 

Alvin  Hunt. 
Sworn  before  me  this  3d  day  of 

August,  1849. 

Robert  Morris,  Justice. 

SUMMON.S    RKdTIIRING    THE   TENANT  AT    SUFFERANCE    TO 

REMOVE. 

^Vo  John  IIi/rn.s  :  "Whereas,  .Tames  Brown  has  made  oath, 
and  presented  the  same  to  me,  that  on  or  about  the  Lst  day  of 


LANDLORD  AND  TENANT.  397 

June,  1848,  he  demised  unto  you  a  certain  lot  of  land,  [he?'e  de- 
scribe the  pi^emises,]  for  the  term  of  one  year  from  the  first  of 
the  next  July,  and  that  you  or  your  assigns  hold  over  and 
continue  in  possession  of  the  said  premises,  after  the  expiration 
of  your  term  therein,  without  the  permission  of  the  landlord  : 
Therefore,  the  people  of  the  state  of  New  York  hereby  summon 
and  require  you,  forthwith  to  remove  from  the  said  premises,  or 
show  cause  before  me,  at  my  office  in  the  village  of  Norwich, 
on  the  9th  day  of  July,  1849,  at  ten  o'clock  in  the  forenoon,  why 
possession  of  the  said  premises  should  not  be  delivered  to  the 
said  James  Brown.     Norwich,  July  5th,  1849. 

James  Jackson,  Justice  of  the  Peace. 

If  the  summons  is  directed  to  a  tenant  at  will,  the  form  of  the 
summons  will  be  substantially  as  given  above,  but  the  circum- 
stances under  which  the  tenant  holds  over  should  be  recited. 

The  summons  must  be  served  either 

1.  By  delivering  to  the  tenant  to  whom  it  shall  be  directed,  a 
true  copy  thereof,  and  at  the  same  time  showing  him  the  ori- 
ginal ;  or, 

2.  If  such  tenant  be  absent  from  his  last  or  usual  place  of 
residence,  by  leaving  a  copy  thereof  at  such  place  with  some 
person  of  mature  age  residing  on  the  premises.  (2  R.  S.  604, 
sec.  32.) 

AFFIDAVIT    OF    THE    SERVICE    OF    SUMMONS. 

Chenango  County,  ss. — Samuel  Peterson,  of  Norwich,  in  said 
county,  being  duly  sworn,  says,  that  on  the  6th  day  of  July, 
1849,  he  served  the  annexed  summons  upon  John  Burns,  the 
tenant  therein  named,  by  delivering  to  him  a  true  copy  thereof, 
at  the  same  time  showing  him  the  orignal,  [or  by  leaving  a  copy 
of  the  summons  at  the  last  (or  usual)  j^lace  of  residence  of  the 
said  John  Burns,  in  the  town  of  Norivich,  aforesaid,  loith  John 
/Smith,  a  person  of  mature  age,  the  said  John  Burns  being  at 
the  time  of  such  service,  absent  therefrom.^ 

Samuel  Peterson. 
Sworn  before  me,  this  7th  day 

of  July,  1849. 

Robert  Morris,  Justice. 


398  LANDLORD  AND  TENANT. 

If,  at  the  time  appointed  in  the  summons,  no  sufficient  cause 
be  shown  to  the  contrary,  and  due  proof  of  the  service  of  such 
summons  be  made  to  the  magistrate,  he  shall  thereupon  issue 
his  warrant  to  the  sheriff  of  the  county,  or  to  any  constable  or 
marshal  of  the  city  or  town  where  the  premises  are  situated, 
commanding  him  to  remove  all  persons  from  the  said  premises, 
and  to  put  the  said  applicant  to  such  magistrate  into  the  posses- 
sion thereof.     (2  R.  S.  604,  sec.  33.) 

Any  person  in  possession  of  such  demised  premises,  and  any 
person  claiming  possession  thereof,  may,  at  the  time  appointed 
in  such  summons,  for  showing  cause,  or  before,  file  an  affidavit 
with  the  magistrate  who  issued  the  same,  denying  the  facts 
upon  which  the  said  summons  was  issued,  or  any  of  those  facts  : 
and  the  matters  thus  controverted,  shall  be  tried  by  a  jury,  pro- 
vided either  parly  to  such  proceeding;  shall  at  the  time  appointed 
in  such  summons  for  shon'ing  cause,  [and  before  adjournment,^ 
dernand  snch  jury,  and  shall  at  the  ti?ne  of  such  demand,  pay 
the  necessary  costs  and  expenses  of  obtaining  such  jury.  (Laws 
1849.) 

In  order  to  form  such  jury,  the  magistrate  with  whom  such 
affidavit  shall  be  filed,  shall  nominate  tivelve  reputable  per- 
sons qualified  to  serve  as  jurors  in  courts  of  record  ;  and  shall 
issue  his  precept  directed  to  the  sheriff,  or  one  of  the  constables 
of  the  county,  or  any  constable  or  marshal  of  the  city  or  town, 
commanding  him  to  summon  the  persons  so  nominated  to  ap- 
pear before  such  magistrate,  at  such  time  and  place  as  he  shall 
therein  appoint,  not  more  than  three  days  from  the  date  thereof, 
for  the  purpose  of  trying  the  said  matters  in  difference. 

Six  of  the  persons  so  summoned,  shall  be  balloted  for,  and 
drawn  in  like  manner  as  jurors  in  Justices'  Courts  ;  and  shall  be 
sworn  by  such  magistrate,  well  and  truly  to  hear,  try,  and  de- 
termine the  matters  in  difference  between  the  parties.  (2  R.  S. 
423,  sec.  36.) 

Any  magistrate  before  whom  such  application  may  be  pend- 
ing, may,  upon  the  request  of  either  party,  adjourn  the  hearing 
of  such  application,  for  the  purpose  of  enabling  such  party  to 
procure  his  witnesses,  whenever  it  shall  appear  to  be  necessary  ; 
but  such  adjouriuncnt  sliall  in  no  case  exceed  ten  days.  (Id. 
00.'),  sec.  41.) 

Any  magistrate  before  whom  such  application  may  be  pend- 
ing, may,  at  the  request  of  cither  parly,  issue  his  subpoena,  re- 


LANDLORD  AND  TENANT.  399 

quiring  any  person  to  appear  and  testify  before  such  magistrate, 
or  before  the  jury,  touching  the  matters  herein  directed  to  be 
heard  by  them  ;  and  every  person  who  being  served  with  such 
subpoena,  shall,  without  reasonable  cause,  refuse  or  neglect  to 
appear;  or  appearing,  shall  refuse  to  answer  upon  oath,  touch- 
ing the  matters  aforesaid  ;  shall  be  subject  to  the  proceedings 
and  penalties  provided  by  law  in  similar  cases.     (Id.  42.) 

After  hearing  the  allegations  and  proof  of  the  parties,  the  jury 
shall  be  kept  together,  until  they  agree  on  their  verdict,  by  the 
sheriff,  or  one  of  his  deputies,  or  a  constable,  or  by  some  proper 
person  appointed  by  the  magistrate  for  that  purpose,  who  shall 
be  sworn  to  keep  such  jury,  as  is  usual  in  like  cases,  in  courts 
of  record.     (2  R.  S.  605,  sec.  37.) 

If  such  jury  cannot  agree,  after  being  kept  together  for  such 
time  as  such  magistrate  shall  deem  reasonable,  he  may  dis- 
charge them,  and  nominate  a  new  jury,  and  issue  a  new  pre- 
cept in  manner  aforesaid.     (Id.  605,  sec.  38.     9  Wend.  230.) 

If  the  verdict  of  any  jury  so  summoned,  shall  be  in  favor  of 
the  lessor  or  landlord,  or  other  person  claiming  the  possession  of 
the  premises,  the  magistrate  shall  issue  his  warrant  to  the  sher- 
iff of  the  county,  or  to  the  marshal  or  constable,  of  the  city  or 
town  in  which  the  premises  are  situated,  commanding  such  of- 
ficer to  put  such  landlord,  lessor,  or  other  person,  into  possession 
of  the  premises,  as  herein  before  directed.     (2  R.  S.  605,  sec.  39.) 

The  officer,  to  whom  such  warrant  for  delivering  possession 
shall  be  directed  and  delivered,  in  either  of  the  cases  aforesaid, 
is  hereby  required  to  execute  the  same,  according  to  the  tenor 
thereof.     (2  R.  S.  605,  sec.  40.) 

WARRANT    TO    PUT    THE    LANDLORD    IN    POSSESSION. 

To  any  one  of  the  Constables  of  the  County  of  Chenango, 
Greeting  : 
Whereas,  James  Brown,  of  the  town  of  Oxford,  in  said  county, 
on  the  5th  day  of  July,  1849,  made  oath  in  writing,  and  pre- 
sented the  same  to  me,  that  on  or  about  the  1st  day  of  June, 
1848,  he  demised  unto  John  Burns  a  certain  lot  of  land,  [here 
describe  the  premises,]  for  the  term  of  one  year  from  the  first 
day  of  July,  then  next,  and  that  he  or  his  assigns  hold  over  and 
continue  in  possession  of  the  same,  after  the  expiration  of  said 
term  therein,  without  the  permission  of  the  landlord.     Where- 


400  LANDLORD  AND  TENANT. 

upon  I  issued  a  summons,  requiring  the  tenant  forthwith  to 
remove  from  the  said  premises,  or  show  cause  before  me,  at  a 
certain  time  now  past,  why  the  possession  of  the  said  premi- 
ses should  not  be  dehvered  to  the  landlord  ;  and  no  sufficient 
cause  having  been  shown  to  the  contrary,  and  due  proof  of  the 
service  of  the  said  summons  having  been  made,  I  do,  therefore,  in 
the  name  of  the  people  of  the  state  of  New  York,  command  you 
to  remove  all  persons  from  the  said  premises,  and  put  the  land- 
lord into  full  possession  thereof.  Witness  my  hand,  this  10th 
day  of  July.  1849. 

James  Jackson,  Justice. 

WARRANT    TO    REMOVE    THE    TENANT    IN    CASE    OF    TENANCY 

AT    WILL. 

To  any  one  of  the  Constables  of  the  County  of  Chenango, 
Greeting  : 
Whereas,  Alvin  Hunt  has  made  oath  in  writing,  and  pre- 
sented the  same  to  me,  that  on  or  about  the  1st  day  of  Septem- 
ber, 1848,  he  did  demise  and  lease  to  Robert  Doyle,  certain 
premises  situate  in  the  town  of  Sherburne,  county  aforesaid,  to 
wit :  {here  describe  the  jjremises,]  as  his  tenant,  at  his  will, 
without  any  fixed  time  agreed  on  for  the  termination  of  said  ten- 
ancy. And  that  he  caused  a  notice  in  writing  to  be  served  on 
the  said  Robert  Doyle,  in  due  form  of  law,  on  the  1st  day  of 
July  last,  requiring  him,  the  said  tenant,  to  remove  from  the 
said  premises  within  one  month  from  the  day  of  the  service 
thereof  And  that  the  said  month  has  expired,  but  that  the  said 
tenant,  or  his  assigns,  hold  over,  and  continue  in  possession  of 
said  premises  after  the  expiration  of  said  time,  without  the  per- 
mission of  said  landlord.  Whereupon  I  issued  a  summons  re- 
quiring the  said  Robert  Doyle  to  remove  from  said  premises,  or 
show  cause  before  me  at  a  certain  time  now  past,  why  Alvin 
Hunt,  tlic  landlord,  should  not  be  put  in  possession  of  said  premi- 
ses ;  and  due  proof  of  the  service  of  said  summons  having  been 
made  to  me,  and  no  good  cause  against  the  said  landlord's  ap- 
plication liaving  been  shown,  or  any  way  appearing  ;  therefore, 
you  are  hereby  commanded,  in  the  name  of  the  people  of  the 
state  of  New  York,  to  remove  all  ])crsons  from  the  said  premi- 
ses, and  ])ul  th(!  said  Alvin  Hunt  into  the  full  possession  thereof. 
Witness  my  hand,  this  15th  day  of  September,  1849. 

James  Jackson,  Justice. 


LANDLORD  AND  TENANT. 


401 


Whenever  a  v/arrant  shall  be  issued,  as  aforesaid,  by  any  such 
magistrate,  for  the  removal  of  any  tenant  from  any  demised 
premises,  the  contract  or  agreement  for  the  use  of  the  premises, 
if  any  such  exists,  and  the  relation  of  landlord  and  tenant  be- 
tween the  parties,  shall  be  deemed  to  be  cancelled  and  annulled. 
(2  R.  S.  605,  sec.  43.) 

When  the  application  to  the  magistrate  is  founded  on  the 
fact  that  the  tenant  or  lessee  has  taken  the  benefit  of  any  insol- 
vent act,  or  been  discharged  under  any  act  for  the  relief  of  his 
person  from  imprisonment,  the  proceedings  shall  be  stayed,  if  at 
any  time  before  issuing  the  warrant  for  removal,  the  tenant,  or 
lessee,  or  his  assignee,  shall  pay  the  costs  of  such  proceedings 
as  have  been  had,  and  give  such  security  to  the  person  entitled 
to  the  rent  for  the  payment  thereof,  as  it  shall  become  due,  as 
shall  be  satisfactory  to  the  magistrate.     (Id.  sec.  45.) 

When  such  application  is  founded  on  an  alleged  sale,  by  exe- 
cution, of  the  premises  occupied  by  the  defendant  in  such  exe- 
cution, the  proceedings  shall  be  stayed,  if  at  any  time  before 
issuing  the  warrant  of  removal  the  occupant  shall — 

1.  Pay  the  costs  of  such  proceedings. 

2.  File,  with  the  officer  before  whom  the  application  is  pend- 
ing, an  affidavit  that  he  claims  the  possession  of  such  premises 
by  virtue  of  some  title  or  right  acquired  after  such  premises 
were  sold,  or  as  guardian  or  trustee  for  any  other  ;  and 

3.  Execute  a  bond  to  the  applicant  for  such  warrant,  in  such 
penalty  and  with  such  sureties  as  the  magistrate  shall  approve, 
conditioned  to  pay  the  costs  which  may  be  recovered  against 
him  in  any  ejectment  that  may  be  brought  by  such  applicant, 
within  six  months,  for  the  recovery  of  the  possession  of  the 
premises,  and  to  pay  the  value  for  the  use  and  occupation  of 
such  premises  from  the  date  of  such  bond  to  the  time  such  ap- 
plicant shall  obtain  possession  of  the  same,  by  virtue  of  a  reco- 
very in  such  action  of  ejectment ;  and  also  conditioned  not  to 
commit  any  waste  or  injury  to  such  premises  during  his  occu- 
pation thereof.     (2  R.  S.  605,  sec.  46.) 

In  all  cases  of  an  application  pursuant  to  the  statute,  the  pre- 
vailing party  shall  recover  costs,  and  may  maintain  an  action 
for  the  recovery  thereof ;  and  if  the  proceedings  be  reversed,  or 
quashed  on  appeal,  the  tenant  or  lessee  may  recover  against  the 
person  making  application  for  such  removal,  any  damages  he 

26 


402  LANDLORD  AND  TENANT. 

may  have  sustained  by  reason  of  such  proceedings,  with  costs. 
(Id.  50.) 

3.  Proceedings  to  turn  Tenant  ont^for  non-payment  of  Rent. 

NOTICE    TO    PAY    RENT,    OR    LEAVE    THE    PREMISES. 

To  Henry  Long,  Tenant: — 

Sir — Six  months  rent  is  due  upon  the  house  and  lot  leased 
by  me  to  you,  which  you  have  hitherto  neglected  and  refused  to 
pay.  This  is  to  inform  you  that  you  must  pay  the  same  within 
three  days  from  the  service  of  this  notice,  or  give  up  the  posses- 
sion of  the  said  premises  to  me.     Dated  Binghamton,  the  1st 

day  of  June.  1849. 

Yours,  &,c., 

Samuel  Stow. 

The  foregoing  must  be  served,  either — 

1.  By  delivering  to  the  tenant  to  whom  it  shall  be  directed  a 
true  copy  thereof,  at  the  same  time  showing  the  original ;  or, 

2.  If  such  tenant  be  absent  from  his  last  or  usual  place  of 
residence,  by  leaving  a  copy  thereof  at  such  place  with  some 
person  of  mature  age  residing  on  the  premises. 

affidavit  of  landlord,  [after  service  of  PRECEDING 
NOTICE,]  to  obtain  SUJIMONS  AGAINST  THE  TENANT  FOR 
non-payment    OF    RENT. 

Broome  County^  ss. — Samuel  Stow,  of  Binghamton,  in  said 
county,  being  duly  sworn,  says  that  Henry  Long,  of  Bingham- 
ton aforesaid,  is  indebted  to  deponent  in  the  sum  of  fifty  dollars, 
due  the  tenth  day  of  May  last,  for  rent  of  a  house  and  lot  be- 
longing to  deponent,  situate  in  the  village  of  Binghamton  afore- 
said, lately  demised  by  deponent  to  the  said  Henry  Long,  and 
in  which  the  said  Henry  Long  noAv  resides ;  that  on  the  25th 
day  of  May  last  he  demanded  the  said  rent  from  the  said  Henry 
Long,  by  serving  him  personally  with  a  true  copy  of  the  an- 
nexed notice,  at  the  same  lime  showing  the  original ;  [or  hy 
leaving  a  copy  tltercnf  at  lite  In. si  [or  usual]  place  of  residence 
of  said  J1ei\ry  Lo)ig^  in  the  village  <f  BiiigJunnton  aforesaid^ 
with  Peter  I* ray.,  a  person  nf  inalare  age  residing  on  ilie  prem- 
ises, said  Long  being,  at  the  time  (f  such  service,  absent  there- 
from.] 


LANDLORD  AND  TENANT.  403 

Deponent  further  says  that  said  Henry  Long  has  not  yet  paid 
the  said  rent,  in  pursuance  of  the  agreement  under  whicli  the 
premises  were  demised  to  him,  or  delivered  up  possession  of  the 
said  premises ;  but  that  the  said  Long  has  made  default  in  the 
payment  of  the  said  rent ;  and  that  the  said  Long  holds  over, 
and  continues  in  possession  of  the  said  premises,  without  the 
permission  of  deponent,  and  that  satisfaction  of  the  said  rent 
cannot  be  obtained. 

Samuel  Stow. 
Subscribed  and  sworn  this  4th  day 

of  June,  1849,  before  me, 

John  Miller,  Justice. 

SUMMONS  REQ.UIRING  THE  TENANT  TO  LEAVE  THE  PREM- 
ISES, OR  TO  APPEAR  AND  SHOW  CAUSE  WHY  HE  SHOULD 
NOT    BE    REMOVED. 

To  Henry  Long  : — 

Broome  County,  55.— Whereas,  Samuel  Stow,  landlord  of  the 
premises  hereinafter  mentioned,  has  this  day  made  oath  in  wri- 
ting that  you  are  justly  indebted  to  him  in  the  sum  of  fifty  dol- 
lars, due  the  tenth  day  of  May  last  for  rent  of  a  house  and  lot 
belonging  to  the  said  Samuel  Stow,  situated  in  the  village  of 
Binghamton,  county  aforesaid,  which  house  and  lot  you  con- 
tinue to  occupy ;  that  he  has  demanded  of  you  the  said  rent  or 
possession  of  said  premises,  in  due  form  of  law ;  and  that  de- 
fault has  been  made  in  the  payment  thereof  pursuant  to  the 
agreement  under  which  the  premises  were  let ;  and  that  you 
hold  over,  and  continue  in  possession  of  the  same,  without  the 
permission  of  the  said  Samuel  Stow,  landlord,  after  default  in 
the  payment  of  rent  as  aforesaid :  You  are  therefore  hereby 
summoned,  in  the  name  of  the  people  of  the  state  of  New  York, 
to  remove  from  the  said  premises,  or  show  cause  before  me,  at 
my  office  in  the  said  village  of  Binghamton,  on  the  Sth  day  of 
June,  1849,  at  two  o'clock  in  the  afternoon,  why  possession  of 
the  said  premises  should  not  be  delivered  to  the  said  Samuel 
Stow.     Witness  my  hand,  this  4th  day  of  June,  1849. 

John  Miller,  Justice. 

The  tenant  may,  at  the  time  appointed  in  the  summons  for 
showing  cause,  or  before,  deny  by  affidavit  any  or  all  the  mate- 


404  LANDLORD  AND  TENANT. 

rial  facts  stated  in  the  affidavit  made  by  the  landlord ;  and 
upon  filing  such  affidavit  with  the  magistrate  at  or  before  the 
time  for  showing  cause,  the  facts  thus  controverted  are  to  be 
tried  by  a  jury,  provided  either  party  to  such  proceeding  shall, 
at  the  time  appointed  in  such  summons  for  showing  cause,  [and 
before  adjournment,]  demand  such  jury,  and  shall,  at  the  time 
of  such  demand,  pay  the  necessary  costs  and  expenses  of  ob- 
taining such  jury.     (Laws,  1849.) 

AFFIDAVIT    OF    THE    TENANT. 

Broome  County,  55.— Henry  Long,  of  Binghamton,  in  said 
county,  being  sworn,  says  he  does  not  owe  the  said  Samuel 
Slow  the  sum  of  fifty  dollars  for  the  rent  of  a  house  and  lot  oc- 
cupied by  this  deponent  in  the  village  of  Binghamton,  as  is 
alleged  by  the  said  Samuel  Stow,  in  an  affidavit  lately  made 
before  John  Miller,  Esquire,  one  of  the  Justices  of  the  Peace  of 
Broome  county,  and  on  which  proceedings  have  been  had  be- 
fore him,  to  remove  this  deponent  from  the  said  premises. 

Henry  Long. 
Subscribed  and  sworn  this  8th  day 

of  June,  1849,before  me. 

John  Miller,  Justice. 

PRECEPT    TO    summon    JURY. 

Broome  County,  ss. 
To  the  Sheriff,  or  any  Constable  of  the  said  County,  Greeting: 

Whereas,  Samuel  Stow  did,  on  the  4th  day  of  June,  1849, 
make  oath  in  writing,  that  Henry  Long  was  justly  indebted  to 
him  in  the  sum  of  fifty  dollars,  due  the  tenth  day  of  May  last, 
for  rent  of  a  house  and  lot  belonging  to  the  said  Samuel  Slow, 
situate  in  the  village  of  Binghamton,  county  aforesaid,  which 
house  and  lot  the  said  Henry  Long  continued  to  occupy  ;  that 
he  had  demanded  of  said  Henry  Long  the  said  rent,  or  posses- 
sion of  said  premises,  in  due  form  of  law  ;  and  that  default  had 
been  made  in  the  payment  thereof,  pursuant  to  the  agreement 
under  which  the  premises  were  let  :  and  that  the  said  Henry 
Long  held  over  and  continued  in  possession  of  the  same,  with- 
out the  permission  of  the  said  Samuel  Stow,  landlord,  after  de- 
fiuil  in  the  payment  of  rent,  as  aforesaid.     Wliercupon,  upon 


LANDLORD  AND  TENANT.  405 

the  presentation  of  said  oath,  in  writing,  to  me,  I  issued  a  sum- 
mons, describing  therein  the  premises  of  which  possession  was 
claimed  as  aforesaid,  and  requiring  the  said  Henry  Long  forth- 
with to  remove  from  the  same,  or  to  show  cause  before  me,  on 
the  8th  day  of  June,  1849,  why  possession  of  the  said  premises 
should  not  be  delivered  to  the  said  Samuel  Stow,  the  said  ap- 
plicant. 

And  whereas,  in  order  to  form  a  jury  to  try  the  matters  thus 
controverted,  I  have  nominated,  and  hereby  do  nominate  [insert 
the  naiJiGs,]  twelve  reputable  persons  qualified  to  serve  as  jurors 
in  courts  of  record.  You  are,  therefore,  hereby  commanded, 
in  the  name  of  the  people  of  the  state  of  New  York,  to  summon 
the  above  named  persons  so  nominated,  to  appear  before  me,  at 
my  office,  in  the  village  of  of  Binghamton,  on  the  lOtli  day  of 
June,  1849,  at  two  o'clock  in  the  afternoon,  to  try  the  said  mat- 
ters in  diflference.     Dated  this  8th  day  of  June,  1849. 

John  MilleR;  Justice. 

SUBPCENA    FOR    WITNESSES. 

Broome  County,  ss. 

To  John  Doe,  Richard  Roe,  and  James  Smith. 

In  the  name  of  the  people  of  the  state  of  New  York,  you  and 
each  of  you,  are  hereby  commanded,  all  business  and  excuses 
being  laid  aside,  to  appear  before  me,  at  my  office,  in  the  village 
of  Binghamton,  on  the  10th  day  of  June,  1849,  at  two  o'clock 
in  the  afternoon,  to  testify  touching  the  matters  in  controversy 
between  Samuel  Stow,  landlord,  and  Henry  Long,  tenant,  rela- 
tive to  the  summary  removal  of  such  tenant  from  the  premises 
of  the  said  Samuel  Stow,  on  the  part  of  the  said  Stow.  And 
for  a  foilure  to  attend,  you  will  be  responsible  to  the  aggrieved 
party  for  the  loss  and  hindrance  sustained  by  such  faiUire,  and 
for  all  other  damages  sustained  thereby,  and  forfeit  ten  dollars 
to  the  aggrieved  party  in  addition  to  such  damages.  Given  un- 
der my  hand  this  8th  day  of  Jime,  1849. 

John    Miller,   Justice. 

WARRANT    TO    DISPOSSESS    THE    TENANT    FOR    NON-PAYMENT 

OF    RENT. 

To  any  Constable  of  the  County  of  Broome,  Greeting  : 
Whereas.  Samuel  Stow,  landlord  of  the  premises  hereinafter 


406  LANDLORD  AND  TENANT. 

mentioned,  has  made  oath,  in  writing,  that  Henry  Long  is  justly 
indeiited  unto  him  in  the  sum  of  fifty  dollars,  due  the  tenth  day 
of  May  last,  for  rent  of  a  house  and  lot  belonging  to  the  said 
Samuel  Stow,  situate  in  the  village  of  Bingliamton,  county 
afoicsaid,  in  which  the  said  Henry  Long  now  resides  ;  that  he 
had  demanded  the  said  rent,  or  possession  of  the  premises,  in 
due  form  of  law,  from  the  said  Henry  Long,  who  has  made  de- 
fault in  the  payment  thereof,  pursuant  to  the  agreement  under 
which  the  premises  were  let ;  and  that  he  holds  over,  and  con- 
tinues in  possession  of  the  same,  without  the  permission  of  the 
landlord,  after  default  in  the  payment  of  the  reirt,  as  aforesaid. 
Whereupon,  I  issued  a  summons,  requiring  the  tenant  to  remove 
from  said  premises,  or  to  show  cause,  before  me,  on  the  8th  day 
of  June  last  past,  why  possession  of  the  said  premises  should 
not  be  delivered  to  the  said  landlord  ;  and  due  proof  of  the  ser- 
vice of  the  said  summons  having  been  made  to  me,  and  no  good 
cause  against  the  said  landlord's  application  having  been  shown  : 
Now,  therefore,  you  are  hereby  commanded,  in  the  name  of  the 
the  people  of  the  state  of  New  York,  to  remove  all  persons  from 
the  said  premises,  and  to  put  the  s'^id  Samuel  Stow,  the  said  ap- 
plicant, into  the  full  possession  thereof.  Given  under  my  hand, 
at  Binghamton  aforesaid,  the  9th  day  of  June,  1849. 

John  Miller,  Justice. 

The  foregoing  is  the  form  of  a  warrant,  in  case  the  tenant 
makus  no  defence.  If  he  controverts  the  landlord's  affidavit, 
and  the  matter  is  tried  by  a  jury,  the  warrant  will  be  the  same 
as  above,  with  the  following  addition: 

"And  whereas,  on  [or  before]  the  time  appointed  in  such  sum- 
mons, the  said  Henry  Long,  being  in  possession  [or  claiming 
possession]  of  said  premises,  having  filed  an  afiidavit  with  me, 
the  undersigned,  who  issued  the  sununons,  denying  the  facts 
[or  some,  or  one  of  the  facts,]  upon  which  said  summons  was 
issued,  and  a  jury  having  been  regularly  nominated,  summon- 
ed, ballotled  for,  and  sworn,  pursuant  to  the  statute  in  such  case 
made  and  provided,  to  determine  the  matters  controverted  be- 
tween the  said  parlies;  and  the  said  jury,  after  hearing  the 
proofs  and  allegations  of  thu  j)ariies,  and  being  kept  together  by 
a  i)roper  ofiicer  duly  sworn,  until  they  were  agreed  on  their  ver- 
dict, havinir  found  a  verdict  in  favor  of  the  said  Samuel  Stow  : 


LANDLORD  AND  TENANT.  407 

Now,  therefore,  you  are  hereby  commanded,  in  the  name  of  the 
peof)le  of  the  state  of  New  York,  to  remove  all  persons  from 
the  said  premises,  and  put  the  said  Samuel  Stow  in  full  posses- 
sion of  the  same.  Given  under  my  hand  this  11th  day  of  June, 
1S49.' ' 

The  issuing  of  the  warrant  of  removal  shall  be  stayed,  in 
the  case  of  a  proceeding  for  the  non-payment  of  rent,  if  the  per- 
son owing  such  rent  shall,  before  such  warrant  be  actually  is- 
sued, pay  the  rent  due,  and  all  the  costs  and  charges  of  the  pro- 
ceedings ;  or  give  such  security  as  shall  be  satisfactory  to  the 
said  magistrate,  to  the  person  entitled  to  such  rent,  for  the  pay- 
ment thereof,  and  the  costs  aforesaid,  in  ten  days.  (2  R.  S.  606, 
sec.  44.) 

FORM    OF    SECURITY. 

Know  all  men  by  these  presents,  that  we,  Henry  Long,  of 
Binghamton,  Broome  County,  and  John  Smith,  of  the  same 
place,  are  held,  and  firmly  bound,  unto  Samuel  Stow,  of  the 
same  place,  in  the  sum  of  one  hundred  dollars,  lawful  money, 
to  be  paid  to  the  said  Samuel  Stow,  his  executors,  adminis- 
trators, or  assigns,  for  which  payment,  well  and  truly  to  be  made, 
we  bind  ourselves,  our  heirs,  executors,  and  administrators, 
jointly  and  severally,  firmly  by  these  presents.  Sealed  with  our 
seals.     Dated  the  8ih  day  of  June,  1849. 

The  condition  of  this  obligation  is  such,  that  whereas,  the 
above  named  Samuel  Stow,  on  the  4th  day  of  June,  1849,  made 
oath,  in  writing,  that — [here  recite  the  oath] — and  did  present 
the  sam.e  to  John  Miller,  a  Justice  of  the  county  of  Broome, 
and  such  proceedings  were  thereupon  afterwards  had,  by  and 
before  the  said  John  Miller,  as  such  Justice,  that  the  said 
Justice  is  about  to  issue  his  warrant  to  a  constable  of  the  county 
of  Broome,  commanding  him  to  remove  all  persons  from  the 
said  premises,  and  put  the  said  Samuel  Stow  into  the  full  pos- 
session thereof.  And  whereas,  such  warrant  is  not  yet  actually 
issued,  and  the  said  Henry  Long  is  -anxious  to  stay  the  issuing 
of  such  warrant  of  removal:  Now,  therefore,  if  the  said  Henry 
Long  and  John  Smith  shall  pay  the  said  rent,  sworn  to,  as  afore- 
said, due  to  the  said  Samuel  Stow,  and  all  the  costs  and  charges 


408  LANDLORD  AND  TENANT. 

of  the  said  proceedings,  in  ten  days  from  the  date  hereof,  then 
this  obligation  to  be  void  ;  otherwise  of  force. 

Henry  Long,  [l.  s.] 
John  Smith,    [l.  s.] 
Sealed  and  delivered  in  presence  of, 
William  Brady. 

The  magistrate  should  endorse  upon  the  bond  his  approval, 
thus : 

"  I  approve  the  within  bond,  and  the  surety  therein  named, 
considering  the  security  satisfactory." 

Though  a  tenant  be  removed  from  demised  premises  for  non- 
payment of  rent,  by  summary  proceedings,  the  landlord  may 
nevertheless  recover  the  rent  by  action.     (6  Hill,  507.) 


In  case  the  foregoing  proceedings  are  had  before  a  Justice  of 
the  Peace,  the  Justice  is  required  to  enter  the  finding  of  the 
jury,  or  in  case  no  jury  is  called,  his  final  decision  upon  said 
application  for  such  warrant  in  his  docket,  and  render  judgment 
therefor,  and  include  in  such  judgment  costs  of  such  proceed- 
ings to  the  prevailing  party,  at  the  same  rate  of  fees  now 
allowed  by  law  in  civil  actions  in  Courts  of  Justices  of  the 
Peace,  and  limited  in  like  manner  ;  and  in  the  warrant  for  de- 
livery of  possession,  or  by  execution  issued  by  him,  the  Justice 
must  direct  the  collection  of  such  costs. 

The  proceedings  before  such  Justice  may  be  removed  by 
appeal  to  the  County  Court  of  the  county,  in  the  same  manner, 
and  with  the  like  effect,  and  upon  like  security,  as  appeals  from 
the  judgment  of  Justices  of  the  Peace  in  civil  actions,  except 
that  the  decision  of  such  county  Judge  must  be  an  aOirmance 
or  reversal  of  such  judgment,  and  be  final.  IJut  in  addition  to 
the  security  for  such  judgment,  as  required  by  law,  in  case  of 
such  appeal  ;  in  order  to  stay  the  issuing  of  such  warrant  or 
execution,  there  must,  in  case  of  appeal  by  the  tenant,  be  secu- 
lity  also  given  for  the  p;iymont  of  all  rent,  accruing  or  to  accrue, 
upon  said  premises,  subsc(iuent  to  the  said  application  to  the 
said  Justice. 

No  appeal  under  the  foregoing  can  be  allowed,  unless  such 
security  for  said  judgment  be  given  and  approved  by  the  Judge, 


LANDLORD  AND  TENANT.  409 

at  the  time  of  allowing  such  appeal,  and  served  on  the  Justice, 
with  the  affidavit  for  appeal.     (Vide  Laws  of  1849.) 

4.  Proceedings  where  premises  are  Deserted  hy  Tenant. 

If  any  tenant,  being  in  arrear  for  rent,  shall  desert  the  de- 
mised premises,  and  leave  the  same  unoccupied  and  unculti- 
vated, without  any  goods  thereon  subject  to  distress,  to  satisfy 
the  arrears  of  rent,  any  Justice  of  the  Peace  of  the  county  may, 
at  the  request  of  the  landlord,  and  upon  due  proof  that  the 
premises  have  been  so  deserted,  leaving  such  rent  in  arrear,  and 
no  goods  thereon  subject  to  distress,  go  upon  and  view  the  said 
premises  ;  and  upon  being  satisfied  upon  such  view,  that  the 
premises  have  been  so  deserted,  he  shall  affix  a  notice  in  wri- 
ting, upon  a  conspicuous  part  of  the  premises,  requiring  the 
tenant  to  appear  and  pay  the  rent  due,  at  some  time  in  the  said 
notice  specified,  not  less  than  five,  nor  more  than  twenty  days 
after  the  date  thereof.     (2  R.  S.  603,  sec.  24.) 

At  the  time  specified  in  such  notice,  the  Justice  shall  again 
view  the  premises  ;  if  the  tenant  appear  and  deny  that  any 
rent  is  due  to  the  landlord,  all  proceedings  shall  cease.  If,  upon 
such  second  view,  the  tenant,  or  some  one  for  him,  shall  not 
appear  and  pay  the  rent  in  arrear,  and  there  shall  not  be  suffi- 
cient goods  on  the  premises  to  satisfy  such  rent,  then  such 
Justice  may  put  the  landlord  into  possession  of  the  said  demised 
premises  ;  and  any  demise  of  the  said  premises  to  such  tenant 
shall,  from  thenceforth,  become  void,     (Id.  sec.  2.5.) 

An  appeal  from  the  proceedings  of  any  Justice  in  such  case, 
may  be  made  by  the  tenant,  at  any  time  within  three  months 
after  such  possession  delivered,  to  the  County  Court,  by  serving 
notice  in  writing  thereof  upon  such  Justice,  and  by  giving  secu- 
rity, to  be  approved  by  such  Justice,  to  pay  to  the  landlord  all 
costs  of  such  appeal  which  may  be  adjudged  against  such 
tenant ;  and  thereupon  such  Justice  shall  return  the  proceedings 
had  before  him  to  the  said  court,  within  ten  days  after  such 
notice  and  security  given,  and  shall  give  notice  to  the  landlord 
of  such  appeal.     (2'R.  S.  603,  sec.  26.) 

It  is  presumed  that  the  security  required  by  the  foregoing 
section  of  the  statute,  may  be  either  by  a  bond  or  written  un- 
dertaking, or  by  a  deposit. 

The  appellate  court  must  examine  the  proceedings,  and  hear 


410  LANDLORD  AND  TENANT. 

the  proofs  and  allegations  of  the  parties  in  a  summary  way  ; 
and  may  order  restitution  to  be  made  to  such  tenant,  with  costs 
to  be  paid  by  the  landlord  ;  or,  in  case  of  affirming  such  pro- 
ceedings, may  award  costs  against  the  tenant.     (Id.  sec.  27.) 

An  action  lies  for  use  and  occupation,  though  the  tenant  has 
deserted  the  demised  premises,  if  the  contract  still  remains  in 
force  ;  if  the  tenant  voluntarily  abstains  from  the  occupation,  it 
is  no  defence.     (25  Wend.  669.) 

5.  Proceedings  in  cases  of  Forcible  Entry  and  Detainer, 

These  proceedings  are  not  confined  to  landlord  and  tenant, 
but  extend  to  all  persons  whose  lands  whether  owned,  or  simply 
possessed  by  them,  are  unjustly  and  forcibly  entered  or  withheld 
by  force. 


No  entry  shall  be  made  into  any  lands  or  other  possessions, 
but  in  cases  where  entry  is  given  by  law  ;  and  in  such  case, 
only  in  a  peaceable  manner,  not  with  strong  hand,  nor  with 
multitude  of  people.     (2  R.  S.  599,  sec.  1.) 

Where  any  such  forcible  entry  shall  be  made,  or  where  the 
entry  shall  be  made  in  a  peaceable  manner,  and  the  possession 
shall  be  held  by  force,  the  person  so  forcibly  put  out,  or  so  for- 
cibly holden  out  of  possession,  and  the  guardian  of  any  such 
person  being  a  minor,  may  be  restored  to  such  possession,  by 
making  a  complaint  to  a  Judge  of  the  county  court  of  the  same 
county ;  or  to  any  Circuit  Judge  or  Supreme  Court  Commis- 
sioner ;  or  any  Mayor,  Recorder  or  Alderman  of  any  city  ;  any 
special  Justice  ;  any  Justice  of  the  Marine  Court,  or  any  assist- 
ant Justice  of  the  city  of  New  York  ;  in  their  respective  cities 
or  counties,  and  by  such  proceedings  as  are  hereinafter  directed. 
(2  R.  S.  599,  sec.  2.     Id.  sec.  18.) 

Such  complaint  shall  be  in  writing,  and  shall  be  accompa- 
nied by  an  affidavit  of  such  forcible  entry,  or  forcible  holding 
out,  and  that  the  complainant  has  an  estate  of  freehold,  or  for 
term  of  years,  in  the  j)rcn)ises,  then  subsisting,  or  some  other 
right  (()  the  j)osscssion  thereof,  stating  the  same  ;  and  the  Judge 
shall  thereupon  issue  a  precept  to  tiie  sherill",  or  any  constable  of 
the  comity,  (■oiiiin.iii'lini;  him  to  cause  twenty-four  inhabitants 
of  the  same  county,  duly  (pialified  to  serve  as  jurors,  to  come 


LANDLORD  AND  TENANT.  411 

before  such  Judge  at  some  time,  not  less  than  two  days  there- 
after, to  inquire  of  such  forcible  entry,  or  such  forcible  holding. 
(2  R.  S.  599,  sec.  3.) 

FORM    OF    COMPLAINT    OF    FORCIBLE     ENTRY    OR    DETAINER. 

Broome  County^  ss. — To  the  Hon.  Edward  Kettel,  Judge  of 
Broome  County  : 

The  complaint  of  David  Gray  of  Binghamton,  in  said  county, 
respectfully  showeth  : — That  your  complainant  was,  on  the  1st 
day  of  September,  1849,  forcibly  put  out  [or  forcibly  holden  out 
of  possessioii]  of  a  certain  house  and  lot,  situate  at  Binghamton 
in  said  county,  to  wit :  [here  describe  premises.'] 

That  your  complainant  was  so  forcibly  put  out  [or  forcibly 
holden  out  of  possession]  of  said  house  and  lot,  by  [here  state 
the  f Acts  as  they  occurred.] 

Dated  September  2d,  1849.  David  Gray. 

FORM    OF    AFFIDAVIT    TO    BE    ANNEXED    TO    THE    COMPLAINT. 

Broome  County,  ss. — David  Gray,  of  Binghamton  in  said 
county,  being  duly  sworn,  says  :  [here  set  forth  the  facts  stated 
in  the  complaint.] 

Deponent  further  says,  he  has  an  estate  of  freehold  [or  for  a 
term,  of  years]  in  the  said  house  and  lot  now  subsisting,  to  wit: 
[here  state  the  precise  nature  of  the  estate.] 

David  Gray. 
Subscribed  and  sworn  before  me,  this  2d  day 

of  September,  1849, 

Henry  West,  Justice. 

PRECEPT    FOR    JURY. 

Broome  County,  ss. 
To  the  Sheriif  [or  "  any  Constable"]  of  the  County,  Greeting  : 
Whereas,  David  Gray,  of  Binghamton  in  said  county,  has 
this  day  made  complaint  in  writing,  to  me,  the  undersigned, 
Judge  of  Broome  County,  that  [recite  the  co7nplai?it ,]  which 
said  complaint  was  accompanied  by  an  affidavit  of  such  forcible 
entry,  [or  such  forcible  holding  out,]  and  that  the  said  David 
Gray  had  an  estate  of  freehold  [or  for  a  term  of  years,]  to  wit : 
[here  state  the  nature  of  the  estate :]     Now,  therefore,  you  are 


412  LANDLORD  AND  TENANT. 

hereby  commanded,  in  the  name  of  the  people  of  the  state  of 
New  York,  to  cause  twenty-four  inhabitants  of  the  said  county 
of  Broome,  duly  qualified  to  serve  as  jurors,  to  come  before  me 
at  my  office  in  the  village  of  Binghamton,  on  the  5th  day  of 
September,  1849,  at  two  o'clock  in  the  afternoon,  to  inquire  into 
the  matters  stated  in  the  complaint. 

Given  under  my  hand,  this  2d  day  of  September,  1849. 

Edward  Kettel, 

Judge  of  Broome  County. 

The  Judge  shall  immediately  cause  a  notice  in  writing  of  the 
issuing  of  such  precept,  and  of  the  time  and  place  of  the  return 
thereof,  to  be  served  upon  the  party  against  whom  such  com- 
plaint is  made  : — 

1.  By  delivering  the  same  to  such  person  ;  or 

2.  If  he  cannot  be  found,  by  delivering  such  notice  to  some 
person  of  proper  age  on  the  premises  :  or 

3.  If  there  be  no  such  person,  by  affixing  the  same  on  the 
front  door  of  the  house,  if  there  be  one  ;  or 

4.  If  there  be  no  house,  on  some  other  public  and  suitable 
place  on  the  premises.     (2  R.  S.  600,  sec.  4.) 

FORM  OF  NOTICE  TO  DEFENDANT. 

To  William  Pierson, 

Whereas,  \Jicre  recite  the  proceedings  that  have  been  had^ 
setting  forth  substantially^  the  complaint,  affidavit,  and  precept 
for  jury.] 

You  will  therefore  please  take  notice  of  the  issuing  of  said 
precept,  and  of  the  time  and  place  for  the  return  of  the  same. 
Dated  the  2d  of  September,  1849. 

Edward  Kettel,  Judge  of  Broome  County. 

At  the  day  and  place  appointed  for  the  return  of  the  precept, 
the  Judge  shall  administer  an  oath  to  the  persons  returned  sum- 
moned, who  shall  appear,  not  being  less  than  thirteen  nor  more 
than  twenty-three,  well  and  truly  to  inquire  into  the  matters 
complained  of,  and  a  true  inquisition  thereof,  to  make.  And 
the  jury  so  sworn,  shall  proceed  to  make  inquiry  into  the  forci- 
ble entry,  or  the  forcible  holding  complained  of,  and  may  ex- 
amine witnesses  on  oath,  to  l)o  administered  by  such  Judge  ; 


LANDLORD  AND  TENANT.  413 

and  shall  make  and  sign  their  inquisition  before  such  Judge, 
and  deliver  the  same  to  him.     (Id.  sec.  5.) 

If  by  such  inquisition  as  is  mentioned  in  the  last  section,  it 
shall  be  found  : — 

1.  That  forcible  entry  was  made  as  aforesaid  ;  or 

2.  That  the  entry  being  peaceable,  the  possession  was  forci- 
bly kept  as  aforesaid ; 

The  party  complained  against,  may  traverse  such  inquisition 
in  writing  : — 

1.  Denying  such  forcible  entry,  or  forcible  holding  out;  or 

2.  Alleging  that  he  or  his  ancestors,  or  those  whose  estate  he 
has  in  such  lands,  have  been  in  quiet  possession  thereof,  for  the 
space  of  three  whole  years  next  before  such  inquisition  found, 
and  that  his  interest  therein  is  not  ended  or  determined. 

And  if  said  traverser  shall  pay  to  the  Judge  mentioned  in  the 
last  section,  the  fees  of  summoning  a  jury  to  try  such  traverse, 
and  the  jurors  and  judges  fees  on  such  trial,  such  traverse  shall 
stay  all  further  proceedings  on  such  complaint  and  inquisition, 
until  the  same  be  tried.  And  if  any  person  shall  make  affida- 
vit, before  such  judge,  that  the  party  complained  against,  is  the 
tenant  of  such  person  (making  the  affidavit,)  under  a  valid  and 
then  subsisting  demise,  he  shall  be  permitted,  on  payment  of 
the  fees  just  specified,  to  traverse  the  said  inquisition  as  land- 
lord, in  the  same  manner  as  is  allowed  to  the  party  complained 
of,  either  with  such  party  or  without  him.  (2  R.  S.  600,  sees. 
6  and  7.) 

FORM    OF    AFFIDAVIT. 

Broome  County^  ss. — Abram  Bevier,  being  duly  sworn,  de- 
poses and  says,  that  William  Pierson  of  Binghamton  county 
aforesaid,  against  whom  David  Gray  of  the  same  place,  did,  on 
the  1st  day  of  September,  1849,  make  a  complaint  to  the  Hon. 
Edward  Kettel,  Judge  of  Broome  County,  to  the  effect  that 
the  said  William  Pierson  forcibly  entered  and  took  (or  forcibly 
detained)  possession  of  a  certain  house  and  lot,  situate  [here  de- 
scribe 2^re7}iises,]  holds  the  aforesaid  house  and  lot,  under  a 
valid  and  still  subsisting  demise  from  deponent. 

Abram  Bevier. 
Subscribed  and  sworn  before  me,  this 
5th  day  of  September,  1849. 

Edward  Kettel,  Judge  of  Broome  County. 


414  LANDLORD  AND  TENANT. 

Upon  the  traverse  in  the  last  section  mentioned,  heing  made 
(either  by  the  party  complained  against,  or  his  landlord,)  the 
Judge  shall  issue  a  precept  to  the  sheriff"  or  any  constable  of  the 
county,  commanding  him  to  summon  twelve  qualified  jurors  to 
come  before  such  Judge  at  the  place  therein  to  be  specified,  at 
a  time  not  less  than  four,  nor  more  than  eight  days  thereafter, 
to  try  such  traverse.     (Id.  600,  sec.  8.) 

PRECEPT  FOR  JURY  TO  TRY  TRAVERSE. 

Broo7ne  County,  ss. 

To  the  Sheriff,  (or  "  any  Constable")  of  the  County  of  Broome, 
Greeting : 

Whereas,  \Jiere  recite  the  proceedings  that  have  been  had., 
setting  forth  substantially  the  complaint,  affidavit,  precept  of 
jury  to  try  inquisition,  notice  to  defendant,  and  proceediiigs  on 
the  inquisition!] 

And  whereas,  the  said  William  Pierson,  did,  in  writing  trav- 
erse said  inquisition,  [state  traverse,]  and  did  pay  to  me,  the 
said  Judge,  the  fees  of  summonmg  a  jury  to  try  such  traverse, 
and  the  jurors  and  judges  fees  on  said  trial :  now,  therefore,  you 
are  hereby  commanded,  in  the  name  of  the  people  of  the  State 
of  New  York,  to  summon  twelve  qualified  jurors,  to  come  be- 
fore me  the  said  judge,  at  my  office  in  the  village  of  Bingham- 
ton,  county  aforesaid,  on  the  IGth  day  of  September  instant,  at 
two  o'clock  in  the  afternoon,  to  try  such  traverse.  Given  under 
my  hand,  this  10th  day  of  September,  1849. 

Edward  Kettel,  Judge  of 
the  County  of  Broome. 

Sheriffs  and  constables  to  whom  any  process  issued  by  a 
Judge,  as  herein  authorized,  shall  bo  directed  and  delivered, 
shall  execute  tlic  same,  and,  if  need  l)o,  shall  command  and 
take  the  power  of  the  county  for  iliat  purpose.  (2  R.  S.  601, 
sec.  15.) 

Twenty-four  hours  personal  notice  to  any  juror,  to  attend 
upon  any  precejit  issued  as  aforesaid,  shall  be  deemed  sufficient 
service,  and  any  person  so  sunnnon(Ml  who  shall  neglect  to  at- 
tend and  serve  as  such  juror  wilhout  reasonable  excuse,  to  be 
allowed  by  tlic  Judg<!  issuing  such  precept,  shall  be  subject  to 
the  same  fine,  to  be  prosecuted  for,  collected,  and  applied  to  the 


LANDLORD  AND  TENANT.  415 

same  use  as  provided  by  law,  in  respect  to  jurors  in  Justices' 
Courts.    (Id.  sec.  16.) 

Tlie  Judge  before  whom  the  complaint  shall  be  made,  may, 
at  the  request  of  either  party,  issue  his  subpoena,  requiring  any 
person  to  appear  and  testify  before  him,  or  before  the  jury  of 
inquiry,  or  before  the  petit  jury,  touching  the  matters  herein 
before  directed  to  bo  heard  by  them.  And  any  person  served 
with  such  subpoena,  who,  without  reasonable  cause,  shall  neg- 
lect to  appear,  or  appearing,  shall  refuse  to  answer  on  oath, 
touching  the  matters  aforesaid,  shall  be  subject  to  the  proceed- 
ings and  penalties  prescribed  by  law,  in  similar  cases,  in  Jus- 
tices' Courts.     (2  R.  S.  601,  sec.  17.) 

The  jurors  shall  be  summoned,  returned,  and  empanelled,  in 
the  same  manner  as  provided  by  law,  in  civil  actions  before 
Justices  of  the  Peace,  and  shall  be  sworn  by  such  Judge  well 
and  truly  to  hear,  try  and  determine  the  said  traverse.  They 
shall  be  kept  together  by  such  judge,  and  shall  hear  and  exam- 
ine any  competent  witnesses,  who  maybe  offered  on  oath,  to  be 
administered  by  such  Judge  ;  and  after  hearing  the  allegations 
and  proofs  of  the  parties,  the  jury  shall  be  kept  together  until 
they  agree  on  a  verdict,  by  an  officer  who  shall  be  sworn,  as  is 
usual  in  trials  in  courts  of  record.  If  the  jury  cannot  agree, 
after  being  kept  together  for  such  time  as  the  judge  shall  deem 
reasonable,  he  may  discharge  them  and  issue  a  precept  for  a 
new  jury,  and  the  same  proceedings  shall  be  had  in  respect  to 
such  new  jury.     (Id.  601,  sees.  9,  10.) 

On  the  trial  of  such  traverse  the  complainant  shall  only  be 
required  to  show,  in  addition  to  the  forcible  entry  or  detainer 
complained  of,  that  he  was  peaceably  in  actual  possession  at 
the  time  of  a  forcible  entry ;  or  was  in  the  constructive  posses- 
sion of  the  premises  at  the  time  of  a  forcible  holding  out  ;  and 
the  traverser  may  show,  in  his  defence,  that  he  or  his  ancestors, 
or  those  whose  interest  in  such  premises  he  claims,  have  been 
in  quiet  possession  thereof,  for  the  space  of  three  whole  years 
together,  next  before  the  said  inquisition  found,  and  that  his  in- 
terest therein,  is  not  then  ended  or  determined,  and  such  show- 
ing shall  be  a  bar  to  the  prosecution.     (Id.  sec.  11.) 

The  verdict  of  the  jury  shall  be  received  and  recorded  by  the 
said  Judge,  and  if  the  defendant  is  thereby  found  guilty,  the 
said  Judge  shall  thereupon  award  restitution  of  the  premises  so 


415  LANDLORD  AND  TENANT. 

forcibly  entered,  or  forcibly  held  out,  and  shall  assess  the  costs 
and  expenses  of  the  proceedings.     (2  R.  S.  601,  sec.  12.) 

He  shall  thereupon  issue  his  precept,  reciting  the  proceedings 
before  him,  and  commanding  the  sheriff  of  the  county,  or  any 
constable  thereof,  to  cause  the  complainant  to  be  restored  and 
put  into  full  possession  of  the  said  premises,  according  as  he 
was  seized  or  possessed  thereof  before  such  entry,  and  shall 
also,  in  the  same  precept,  or  in  separate  execution,  direct  the 
costs  and  expenses  so  assessed,  to  be  levied  and  collected  of  the 
defendant  in  the  same  manner  as  costs  are,  or  may  be  collected 
on  judgments  before  Justices  of  the  Peace,  in  personal  actions. 
(Id.  sec.  13.) 

The  precept  which  the  Judge  is  required  to  issue,  is  similar 
to  the  forms  already  given.  After  reciting  the  proceedings  be- 
fore the  Judge,  it  should  command  the  sheriff  (or  constable,)  to 
cause  the  complainant  to  be  restored  and  put  into  full  posses- 
sion of  the  premises,  according  as  he  was  seized  or  possessed 
thereof  previous  to  the  entry  complained  of;  and  furthermore  to 
levy  and  collect  the  costs  and  expenses  assessed  by  the  jury,  of 
the  goods  and  chattels  of  the  defendant  in  the  same  manner  as 
in  executions  from  Justices'  Courts. 

If  no  such  traverse  shall  be  made,  as  authorized  by  the  stat- 
ute in  the  manner  specified,  within  twenty-four  hours  after  the 
inquisition  found,  the  Judge  shall  in  like  manner,  award  resti- 
tution of  the  premises,  and  assess  the  costs  and  expenses  of  the 
proceedings ;  and  shall  issue  his  precept  in  the  same  manner, 
to  cause  restitution  and  for  the  collection  of  the  costs.  (2  R.  S. 
601,  sec.  14.) 


CHAPTER    XVIII 


OF    HIGHWAYS. 


I  SHALL  treat  the  subjects  of  this  chapter  under  the  foIlowiKg 
heads : — 

1.  General  Principles  of  Lmv,  applicable  to  Highuays. 

2.  The  duties  of  Overseers^  in  regard  to  the  Performance  of 

Labor  upon  Highways. 

3.  Of  the    Obstruction   of  Highways^  and  encroachmints 

thereon. 

4.  Of  laying  out  Public  Roads. 

5.  Regulation  of  Public  Stages. 

1.  General  Principles  of  Laio,  applicable  to  Highways. 

Every  thoroughfare  which  is  used  by  the  pubhc,  and  is  com- 
mon to  all  the  people  of  the  state,  is  a  highway,  whether  it  be  a 
carriageway,  a  horseway,  a  footway,  or  a  navigable  river.  (3 
Kent,  432.)  The  owners  of  the  land,  on  each  side,  go  to  the 
centre  of  the  road  or  river,  and  they  have  the  exclusive  right  to 
the  soil,  subject  to  the  riglit  of  passage  to  the  public  ;  so  that  a 
conveyance  of  land  bounded  on  a  public  highway,  carries  with 
it  the  fee  to  the  centre  of  the  road.  (Id.  432,  433.)  It  is,  how- 
ever, competent  for  the  owner  of  a  fann  or  lot,  having  one  or 
more  of  its  sides  on  a  public  highway,  to  bound  it,  by  express 
terms,  on  the  side  or  edge  of  the  highway,  so  as  to  rebut  the 
presumption  of  law,  and  thereby  reserve  to  himself  his  fee  in 
the  highway.  He  may  convey  the  adjoining  land  without  the 
soil  under  the  highway,  or  the  soil  under  the  highway,  without 
the  adjoining  land.  So  also,  it  is  competent  for  the  ower  of  land, 
on  a  river,  to  sell  his  upland  to  the  top  or  edge  of  the  bank  oi 
the  river,  and  to  reserve  the  stream  and  flats  below  high  water 
mark,  if  he  does  it  by  specific  boundaries.  The  purchaser,  in 
such  a  case,  takes  the  bank  of  the  river  as  it  is,  or  may,  there- 
after, be,  by  alluvion  or  decrease  of  the  flow  of  the  river,  subject 
to  the  common  incidents  which  may  diminish  or  increase  the 

27 


418  OF  HIGHWAYS 

extent  of  !iis  boundaries.  The  owner  may  also  convey  the 
bed  of  a  stream,  separate  from  the  lands  which  bound  it.  (Id.) 
The  public  acquire  no  more  than  a  right  of  way  in  a  public 
thoroughfare,  with  the  powers  and  privileges  incident  to  that 
right,  such  as  digging  the  soil,  and  using  the  timber  and  other 
materials,  found  within  the  space  of  the  road,  in  a  reasonable 
manner,  for  the  purpose  of  making  and  repairing  the  road  and 
its  bridges.  The  right  of  way  in  the  public,  over  the  land  of 
an  individual,  does  not  extinguish  his  title.  When,  therefore, 
the  road  is  discontinued  or  abandoned,  the  entire  and  exclusive 
enjoyment  reverts  to  the  proprietor  of  the  soil.     (15  J.  R.  453.) 

The  owner  of  land  bordering  on  a  highway,  may  maintain 
an  action  against  another,  for  any  use  of  the  road,  except  for  the 
purpose  of  traveling  ;  as  for  cutting  timber,  digging  in  the  soil, 
piling  boards,  or  any  other  exclusive  appropriation  of  the  soil. 
(1  R.  S.  638,  sec.  131.) 

Whenever  any  persons  traveling  with  any  carriages,  shall 
meet  on  any  turnpike  road  or  public  highway,  the  persons  so 
meeting,  must  seasonably  turn  their  carriages  to  the  right  oi  the 
centre  of  the  road,  so  as  to  permit  such  carriages  to  pass  with- 
out interference  or  interruption,  and  an  action  lies,  if  any  injury 
arise  from  not  complying  with  this  provision.  (1  R.  S.  873, 
sec.  1.) 

The  term  carriage,  includes  stage  coaches,  wagons,  carts, 
sleighs,  sleds,  and  every  other  carriage  or  vehicle  used  for  the 
transportation  of  persons  and  goods,  or  either  of  them.  (Id. 
874,  sec.  7.) 

The  right  of  the  centre  oj  the  road^  as  used  in  the  above  sta- 
tute, means  the  right  of  the  centre  of  the  ivorked  j^art  of  the 
road.  The  centre  of  the  smooth,  or  most  traveled  part  of  the 
road,  is  not  the  dividing  line,  it  is  the  centre  of  the  tvorked  part, 
although  the  whole  of  the  smooth  or  most  traveled  part  may  be 
upon  one  side  of  that  centre,  and  it  is  held  to  be  no  defence  to 
an  action  that  the  party  had  no  design  to  offend  ;  that  he  at- 
tempted to  prevent  a  collision  ;  that  the  road  on  his  side  was 
rough  and  rutty,  and  that  it  was  more  difiicult  for  him,  than  for 
the  other  party  to  turn  out ;  unless  the  obstacles  to  turning  out 
are  insuperable,  or  extremely  difiicult,  he  is  without  excuse.  (7 
Wen.  18.5.) 

An  action  also  lies  against  one  who  obstructs  the  highway,  in 
consequence  of  whi(;h,  another  is  injured  by  running  against 


OF  HIGHWAYS.  419 

he  obstruction.  But  the  plaintiff  must  in  this,  as  in  other  ca- 
ses, exercise  ordinary  care  himself,  and,  if  there  be  an  unlawful 
obstruction  in  the  highway,  plain  to  be  seen  at  such  a  distance, 
as  would  enable  the  plaintiff  to  avoid  it,  and  he,  nevertheless, 
rides  with  careless  violence  against  it,  and  is  injured,  he  can- 
not sustain  an  action,  for  the  injury  arises  from  his  own  fault ; 
he  must  use  ordinary  diligence  to  avoid  it.  (11  East,  60.  6 
Cow.  189.) 

An  action  may  be  maintained  for  an  injury  received  by  being 
run  against,  in  the  highway,  even  though  done  accidentally,  the 
defendant  being  no  otherwise  blamable,  than  driving  on  the 
wrong  side  of  the  road,  in  a  dark  night.  (5  Term  R.  648.  1 
Camp.  497.     3  East,  593.     10  Bing.  112.) 

But  if  the  injury  happen  by  unavoidable  accident,  no  action 
will  lie  ;  otherwise  if  blame  attach  to  the  defendant,  though  he 
be  innocent  of  any  intention  to  injure,  as  if  he  drive  a  horse  too 
spirited,  or  pull  the  wrong  rein,  or  use  imperfect  harness,  and. 
the  horse  take  flight  and  kill  another  horse.     (1  Bing.  213.) 

Where  a  child  of  such  tender  age  as  not  to  possess  sufficient 
discretion  to  avoid  danger,  is  permitted,  by  his  parents,  to  be  in 
the  highway,  without  any  one  to  guard  him,  and.  is  there  run 
over  by  the  carriage  of  a  traveler,  and  injured,  no  action  lies 
against  the  traveler,  unless  it  is  shown  that  the  injury  is  vohin 
tary,  or  arose  from  culpable  negligence  on  his  part,  in  an  action 
for  such  injury  ;  and  if  there  he  negligence  on  the  part  of 
the  plaintiff,  there  cannot  be  a  recovery.     (21  Wen.  615.) 

Where  an  injury  has  resulted  from  the  negligence  of  both 
parties,  without  any  intentional  wrong  on  the  part  of  either,  an 
action  cannot  be  maintained.     (5  Hill,  282.     19  Wen.  343.) 

An  action,  prosecuted  in  the  ordinary  way,  before  a  Justice 
of  the  Peace,  is  the  only  proper  mode  of  recovering  the  penalty 
for  obstructing  or  encroaching  upon  highways.  (3  Caines,  259. 
1  J.  R.  510.    7  Wen.  247.) 

If  a  servant,  in  the  course  of  his  master's  business,  do  an  in- 
jury to  another,  the  master  is  acconntable  ;  as  if,  in  driving  his 
master's  team,  he  negligently  run  a  cart  against  another's  car 
riage,  by  which  it  is  broken.  (6  Cow.  189.)  But  if  such  injury 
be  wilfully  done  by  the  servant,  without  his  master's  consent, 
the  master  is  not  liable  ;  for  he  is  only  liable  for  employing  a 
negligent  or  unskilful  servant;  and  the  servant's  wilfully  doing 
an  injury,  is  beyond  the  authority  given  him.     If,  however,  the 


420  ^r  HIGHWAYS. 

business  in  which  the  servant  is  engaged,  be  such,  that  he  can 
justify  himself  to  his  master,  the  master  is  liable  for  any  injury 
resulting  from  negligent  performance.  In  an  action,  therefore, 
against  the  master  for  an  injury  resulting  from  an  obstruction  in 
the  highway,  where  it  appeared  that  the  master  had  been  accus- 
tomed to  lay  his  wood  in  a  certain  place  for  several  years,  and 
the  seivant  laid  his  master's  wood  in  the  same  place,  while  the 
latter  was  sick,  and  without  his  knowledge,  it  was  held,  that  this 
was  an  act  in  the  course  of  his  business  as  servant,  and  conse- 
quently that  the  master  was  liable.     (6  Cow.  1S9.) 

Where  a  man  is  in  my  employ  building  a  cliimney,  and  he 
lays  lime  in  the  road,  by  which  another's  carriage  is  overturned 
and  injured,  I  am  accountable  for  the  damages  :  and  I  shall  be 
equally  responsible,  if  the  man  employed  by  me,  hired  another, 
who  laid  out  the  lime,  either  in  person,  or  by  his  servant.  So,  if 
I  own  a  farm,  and  employ  a  man  to  work  it  for  me,  and  h(^  hires 
other  persons  under  him,  who  are  paid  out  of  my  funds  :  if  any 
damage  happen,  through  their  default,  I  am  answerable.  (2 
Cow.  Tr.  3l)9.)  The  servant  who  does  the  injury,  is  answer- 
able over  to  the  master ;  or  the  person  injured,  may  bring  his 
action  in  the  first  instance,     (id.) 

2.  The  Duties  of  Overseers,  in  regard  to  the  Performance  of 
Labor  iipon  Highways. 

Every  person  assessed  to  work  on  the  highways,  and  warned 
to  work,  may  appear  in  person,  or  by  an  able-bodied  Uian,  as  a 
substitute,  and  the  person  or  substitute  so  appearing,  shall  ac- 
tually work  eight  hours  in  each  day,  under  the  penalty  of  twelve 
and  a  half  cents  for  every  hour  such  person,  or  substitute,  shall 
be  in  default,  to  be  imposed  as  a  fine  on  the  person  assessed. 
(1  R.  S,  625,  sec.  47.) 

If  any  such  person,  or  his  substitute,  shall,  after  appearing, 
remain  idle,  and  not  woik  faithfully,  or  hinder  others  from 
working,  such  oflender  shall,  (or  every  olTcnce,  forfeit  the  sum 
of  one  dollar.     (Sec.  48  ) 

Every  person  so  assessed,  and  duly  notified,  who  shall  not 
commute,  and  who  shall  refuse  or  neglect  to  appear,  as  above 
provided,  shall  luif<;il,  for  every  day's  refusal  or  neglect,  the  sum 
of  one  dollar.     (S<;c.  41).) 

If  he  was  recjuiicd  to  furnish  a  team,  carriage,  man,  or  imple- 
ments, and  shall  refuse  or  neglect  to  comply,  he  shall  be  fined 
as  follows  : 


OF  HIGHWAYS.  421 

1.  For  wholly  omitting  to  comply  with  such  requisition,  three 
dollars  for  each  day. 

2.  For  omitting  to  furnish  a  cart,  wagon  or  plough,  one  dollar 
for  each  day. 

3.  For  omitting  to  furnish  a  pair  of  horses  or  oxen,  one  dollar 
for  each  day. 

4.  For  omitting  to  furnish  a  man  to  manage  the  team,  one 
dollar  for  each  day. 

It  is  made  the  duty  of  every  overseer  of  highways,  within  six 
days  after  any  such  penalty  is  incurred,  if  the  delinquent  do  not 
render  him  a  satisfactory  excuse  for  his  neglect  or  refusal,  to 
make  complaint,  on  oath,  to  one  of  the  Justices  of  the  Peace  of 
the  town.     (1  R.  S.  625,  sec.  50.) 

The  form  of  the  complaint,  where  the  person  assessed  is  no- 
tified merely  to  appear  with  hand  implements,  must  necessarily 
be  so  different  from  the  case  where  there  is  a  requirement  to 
furnish  a  team,  that  I  shall  propose  a  precedent  for  each  case. 

COMPLAINT    FOR    NEGLECT    TO    APPI3AR,    WORK,    &C. 

Town  of  Owesfo,  ss. — John  Smith,  overseer  of  highways  in 
and  for  road  district  number  6,  in  said  town,  makes  oath  and 
complains,  before  Henry  Rodgers,  one  of  the  Justices  of  the 
Peace  of  said  town,  that  he  gave  to  James  Stone,  [who  resides 
in  said  district,  is  assessed  to  work  on  the  highways  therein,  and 
who  has  not  commuted  for  such  assessment,]  twenty-four  hours 
previous  notice  to  appear,  either  in  person  or  by  an  able  bodied 
man  as  a  substitute,  on  the  15th  day  of  May  instant,  at  eight 
o'clock  in  the  forenoon',  at  the  dwelling  house  of  the  said  John 
Smith,  and  to  bring  with  him  a  hoe,  for  the  purpose  of  working 
on  the  highways  in  said  district,  under  the  direction  of  the  said 
John  Smith  as  overseer ;  that  said  James  Stone  neglected  to  ap- 
pear pursuant  to  said  notice  [or  "  appeared  jnirsiiant  to  said 
notice^  and  rejnained  idle,^^]  [or  "  did  not  uwrk  faithfully ^^\  [or 
"  hindered  others  from  ivorking,'^]  [or  "  did  not  ivork  the  re- 
quired number  of  hours  on,  said  dai/,  but  teas  in  defaidt  two 
hours  ;"j  and  that  said  James  Stone  has  not  rendered  to  said 
John  Smith  any  satisfactory  excuse  for  his  neglect  aforesaid. 

John  Smith. 
Subscribed  and  sworn  before  me, 

this  17th  day  of  May,  1849. 

Hknry  Rodgers,  Justice. 


422  OF  HIGHWAYS. 


FORM    OF    COMPLAINT    FOR    NOT    FURNISHING    TEAM. 

Town  of  Owego,  ss. — John  Smith,  overseer  of  highways,  in 
and  for  road  district  number  6,  in  said  town,  makes  oath  and 
complains,  before  Henry  Rodgers.  one  of  the  Justices  of  the 
Peace  of  said  town,  that  he  gave  to  James  Stone  [who  resides 
in  said  district,  is  assessed  to  work  on  the  highways  therein 
three  days,  or  "more  than  three  days,"  and  which  he  has  not 
commuted  for]  twenty-four  hours  previous  notice,  whereby  said 
James  Stone  was  required  to  furnish  a  plough,  pair  of  oxen,  and 
a  man  to  manage  them,  [or  other  team  or  utensils,  man.  4*c.,  as 
may  he  required^  on  the  15th  day  of  May  instant,  at  eight 
o'clock  in  the  morning,  at  the  house  of  said  John  Smith,  in  said 
district,  \or  other  place  designated  in  the  notice,]  to  work  on  the 
highways  under  the  direction  of  said  John  Smith  as  overseer ; 
and  that  said  James  Stone  wholly  omitted  to  comply  with  such 
requisition,  [or  "  omitted  to  furnish  a  plough  as  so  required,"  or 
as  the  oniissio7i  may  6e,]  and  has  not  rendered  to  said  John 
Smith  any  satisfactory  excuse  for  such  omission. 

John  Smith. 
Subscribed  and  sworn  before  me, 

this  17th  day  of  May,  1849. 

Henry  Rodgers,  Justice. 

Upon  the  complaint  being  made,  the  Justice  is  required  forth- 
with to  issue  a  summons,  directed  to  a  constable  of  the  town, 
requiring  the  delinquent  to  appear  forthwith,  and  show  cause 
against  the  imposition  of  a  fine.     (]  R.  S.  625,  sec.  51.) 

FORM    OF    SUMMONS. 

Town  of  Uwego,  ss. 

To  any  Constable  of  said  town.  Greeting  : 
Whereas,  John  Smith,  overseer  of  highways  in  and  for  road 
district  number  6,  in  said  town,  has  this  day  made  complaint, 
on  oath,  before  me,  the  undernamed  Justice  of  the  Peace  of  said 
town,  that,  <fec.  [here  set  forth  the  complaint :]  You  are  there- 
fore hereby  commandf^d,  in  the  name  of  the  people  of  the  state 
ol  New  York,  to  siinmion  the  said  James  Stone  forthwith  to 
appear  before  iiic,  at  my  olWcv.  in  Owego  aforesaid,  to  show 
cause  why  he  should  not  be  fined  according  to  law,  for  the  re- 


OF  HIGHWAYS.  423 

fusal  or  neglect  in  said  complaint  alleged  [against  him.     Given 
under  my  hand,  at  Owego,  May  17th,  1849. 

Henry  Rodgers,  Justice. 

The  summons  must  be  served  personally  on  the  delinquent, 
or  by  leaving  a  copy  at  his  personal  abode.  (1  R.  S.  625,  sec. 
51.     9  J.  R.  229.) 

If,  upon  the  return  of  the  summons,  no  sufficient  cause  to  the 
contrary  be  shown,  the  Justice  must  impose  the  fine  as  provided 
for  the  ofience  complained  of,  and  forthwith  issue  his  warranty 
under  his  hand  and  seal,  to  levy  such  fine,  with  the  costs  of  the 
proceedings,  of  the  goods  and  chattels  of  such  delinquent.  (1 
R:  S.  625,  sec.  52.) 

FORM    OP    WARRANT. 

Toioii  of  Oioego^  ss. 

To  any  Constable  of  said  town.  Greeting  : 
Whereas,  John  Smith,  overseer  of  highways  of  road  district 
number  6,  in  said  town,  made  complaint  on  oath  before  me,  the 
undernamed  Justice  of  the  Peace  of  said  town,  that,  &c.  [hej'e 
set  forth  the  cotnplaint.]     And  whereas,  upon  said  complaint,  I 
caused  the  said  James  Stone  to  be  summoned  by  my  precept, 
for  that  purpose  duly  issued,  to  appear  forthwith  before  me,  at 
my  office  in  Owego  aforesaid,  to  show  cause  why  he  should  not 
be  fined  according  to  law  for  his  refusal  or  neglect,  complained 
of  as  aforesaid,  as  appears  by  said  precept  and  the  endorsement 
thereon,  returned  to  me  by  John  Brown,  constable,  by  whom 
the  same  was  served.     And  the  said  James  Stone  not  having 
appeared  before  me,  pursuant  to  said  summons,  nor  shown  suffi- 
cient cause  to  the  contrary,  [or  "  having-  appeared  before  me, 
pursuant  to  said  summons,  hut  not  showing  sufficient  cause  to 
the^^contrary,^^]  I  did  impose  upon  the  said  James  Stone,  as  a 
fine  for  his  offence,  complained  of  as  aforesaid,  the  sum  of  one 
dollar  [or  as  the  fine  may  he  :\  You  are  therefore  hereby  com- 
manded, in  the  name  of  the  people  of  the  state  of  New  York, 
to  levy  the  said  fine,  together  with  three  dollars  costs  of  the  pro- 
ceedings in  the  prosecution  therefor  of  the  goods  and  chattels  of 
the  said  James  Stone,  and  bring  the  monies  which  you  shall 
collect,  before  me,  with  this  warrant,  as  by  law  required.     Given 
under  my  hand  and  seal,  at  Owego,  this  17th  day  of  May,  1849. 

Henry  Rodgers,  Justice,  [l.  s.] 


424  OF  HIGHWAYS. 

When  the  money  is  collected,  tlie  constable  must  pay  it  to  the 
Justice  who  issued  the  warrant,  who  is  required  to  pay  the  fine 
to  the  overseer,  to  he  by  him  expended  in  improving  the  roads 
and  bridges  in  his  district, 

3.  Of  the  Obstructions  of  Highways,  and  Encroachments 

thereon. 

If  any  person  obstruct  any  highway,  or  fill  up  or  place  any 
obstruction  in  any  ditch  constructed  for  draining  the  water  from 
any  highway,  he  is  made  hable,  by  statute,  for  every  such 
oflence,  to  the  penahy  of  five  dollars.     (1  R.  S.  G37,  sec.  123.) 

If  a  highway  is  encroached  upon  by  fences,  and  the  commis- 
sioners of  highways  deem  it  necessary,  they  may  order  the 
fences  to  be  removed,  so  that  the  highway  may  be  of  the  breadth 
originally  intended.  The  order  must  be  in  writing,  and  signed 
by  them.  They  must  also  give  written  notice  to  the  occupant 
to  remove  his  fences  in  sixty  days.  The  order  and  notice  must 
specify  the  breadth  of  the  road  originally  intended,  the  extent 
of  the  encroachment,  and  the  place  or  places  where  the  same 
may  be.     (1  R.  S.  637,  sec.  124.) 

If  such  removal  shall  not  be  made  within  sixty  days  after  the 
service  of  such  notice,  the  occupant  to  whom  the  notice  shall  be 
given,  shall  forfeit  the  sum  of  fifty  cents  for  every  day  after  the 
expiration  of  that  time,  for  which  such  fences  shall  continue  un- 
removed.     (Id.  125.) 

If  the  occupant  to  whom  notice  is  given  within  five  days, 
deny  the  encroachment,  the  commissioners,  or  one  of  them,  must 
apply  to  some  Justice  of  the  Peace  of  the  county,  to  summon  a 
jury  to  try  the  question.  The  precept  of  the  Justice  is  to  be 
directed  to  any  constable  of  the  town,  requiring  liim  to  summon 
twelve  freeholders  thereof,  to  meet  at  a  certain  day  and  place, 
to  be  specified  in  such  precept,  and  not  less  \\\diU  four  days  after 
the  issuing  thereof  'J'he  constable  must  give  at  least  three  days 
noticfi  to  the  commissioners  and  occupant,  of  the  time  and  place 
at  which  such  jury  is  to  tneet.     (Id.  126.) 

PinX'KPT    TO    SUMMON    THE    JURY. 

Chen'tngo  County,  ss. 

To  any  ('onsial)l(!  of  the  Town  of  Oxford,  in  said  County, 
(irreting  : 
Whereas,  the  commissioners  of  highways,  of  said  town,  have 


OF  HIGHWAYS.  425 

represented  to  me,  the  undernamed  Justice  of  the  PeEC3  of  said 
county,  that  John  Rogers  is  the  occupant  of  the  land,  through 
or  by  which  a  certain  highway'',  in  said  town,  leading  from  the 
house  of  said  John  Rogers  to  the  Chenango  River,  runs,  and 
that  the  said  John  Rogers  has  encroached,  by  fences,  upon  the 
said  highway,  and  that  the  said  John  Rogers,  after  notice  given 
to  him,  denies  such  encroachment.  And  said  commissioners 
having  applied  to  me  for  a  precept  to  summon  a  jury  to  inquire 
into  the  premises  :  You  are,  therefore,  hereby  commanded,  in  the 
name  of  the  people  of  the  state  of  New  York,  to  summon  twelve 
freeholders  of  said  town,  to  meet  at  the  Drovers'  Inn,  in  said 
town,  on  the  23d  day  of  May,  instant,  at  ten  o'clock  in  the  fore- 
noon, to  inquire  whether  such  encroachment  has  been  made,  and 
by  whom.  And  you  are  further  required  to  give  at  least  three 
days  notice  to  the  said  commissioners  and  occupant,  of  the  time 
and  place  of  the  meeting  of  the  freeholders,  as  aforesaid  ;  and 
have  tliere  the  names  of  the  jurors  summoned,  and  this  precept. 
Given  under  my  hand,  this  19tli  day  of  May,  1849. 

David  Long,  Justice. 

The  freeholders,'when  assembled,  must  be  sworn  by  the  Jus- 
tice.    (1  R.  S.  637,  sec.  127.) 

FORM    OP    OATH. 

"You  do  swear,  in  the  presence  of  Almighty  God,  that  you 
will  well  and  truly  inquire  whether  any  encroachment  has  been 
made,  and  by  whom,  on  the  highway  now  in  question  ;  and  a 
true  finding  will  make." 

Witnesses  may  be  produced  by  either  party,  and  sworn  as  in 
other  cases.     (Id.) 

If  the  jury  find  that  an  encroachment  has  been  made,  they 
must  make  and  subscribe  a  written  certificate  thereof,  stating 
the  particulars  of  the  encroachment,  and  by  whom  made.  (Id. 
128.)  The  certificate  must  be  filed  in  the  office  of  the  town 
clerk. 

FORM    OF    CERTIFICATE. 

We,  the  undernamed  freeholders  of  the  town  of  Oxford,  this 


426  OF  HIGHWAYS. 

day  convened,  and  duly  sworn  to  inquire  whether  any  encroach- 
ment has  been  made,  and  by  whom,  on  the  pubhc  highway 
leading  from  the  house  of  John  Rogers  to  the  Chenango  River, 
and  having  heard  the  proofs  and  allegations  before  us  produced 
and  submitted,  and  due  inquiry  made,  &c.,  do  hereby  certify, 
that  we  find  that  the  said  John  Rogers,  did,  in  the  month  of 
April  last,  erect,  and  has  since  continued,  on  the  highway  afore- 
said, a  fence  extending  from  a  point  opposite  his  dwelling  house, 
westwardly  forty  rods,  which  is  an  encroachment  on  said  high 
way,  through  its  whole  extent,  of  an  average  width  of  six  feet. 
Witness  our  hands,  at  Oxford,  May  23d,  1849. 

A.  B.  ^ 

C.  D.  >  Jurors. 

E.  F.,  &c.  ) 

If  the  jury  find  that  an  encroachment  has  been  made,  the  oc- 
cupant must  pay  the  costs  of  the  inquiry.  If  the  same  be  not 
paid  in  ten  days,  the  Justice  is  required  to  issue  a  warrant 
against  him  for  the  collection  thereof.     (1  R.  S.  638,  sec.  128.) 

FORM    OF    WARRANT. 

County  of  Chenango^  ss. 

To  any  Constable  of  the  Town  of  Oxford,  in  said  County, 
Greeting : 
Whereas,  it  has  been  found,  by  the  inquiry  of  twelve  freehol- 
ders of  said  town,  convened  and  sworn  according  to  law,  by  and 
before  me,  the  undernamed  Justice  of  the  Peace,  that  John  Ro- 
gers has  encroached,  by  the  erection  and  continuance  of  fences, 
upon  a  certain  public  highway,  in  said  town,  as  by  the  certifi- 
cate of  said  freeholders,  duly  made  and  filed,  in  the  clerk's  oflice 
of  said  town,  will  more  fully  appear.  And,  whereas,  the  costs 
of  said  inquiry,  amounting  to  the  sum  of  five  dollars,  have  not 
been  paid  by  the  said  John  Rogers,  as  by  law  required,  aUhough 
more  than  ten  days  have  elapsed  since  said  inquiry  and  finding 
were  made  :  You  are,  therefore,  hereby  commanded,  in  the  name 
of  the  people  of  the  state  of  New  York,  to  levy  the  said  costs  of 
the  goods  and  chattels  of  the  said  John  Rogers,  and  bring  the 
moneys  whicli  you  shall  so  collect,  together  with  this  warrant, 
before  me,  as  by  law  required.  Given  under  my  hand  at  Ox- 
ford, June  4tli,  184'J. 

David  Long,  Justice. 


OF  HIGHWAYS.  427 

If  the  jury  find  that  no  encroachment  has  been  made,  they 
must  so  certify,  and  must  also  ascertam  and  certify  the  dam- 
ages of  the  occupant,  by  reason  of  the  proceedings  against  him. 
The  damages,  together  with  the  costs  of  the  inquiry,  must  be 
paid  by  the  commissioners,  and  are  a  charge  in  their  favor 
against  the  town.     (Id.  129.) 

4.   Of  laying  out  Public  Roads. 

No  pubUc  or  private  road  shall  be  laid  out  through  any  or- 
chard or  garden  without  the  consent  of  the  owner  thereof,  if 
such  orchard  be  of  the  growth  of  four  years  or  more,  before  the 
laying  out  of  such  road.  Nor  shall  any  such  road  be  laid  out 
through  any  buildings  ;  or  any  fixtures  or  erections  for  the  pur- 
pose of  trade  or  manufactures  ;  or  any  yards  or  enclosures  ne- 
cessary to  the  use  and  enjoyment  thereof,  without  the  consent 
of  the  owner.     (1  R.  S.  628,  sec.  69.) 

Every  person  liable  to  be  assessed  for  highway  labor,  may 
apply  to  the  commissioners  of  highways  of  the  town  in  which 
he  resides,  to  alter  or  discontinue  any  road,  or  to  lay  out  any 
new  road.  Every  such  application  must  be  in  writing,  addres- 
sed to  the  commissioners,  and  signed  by  the  person  applying. 
(Sec.  65.) 

FORM    OP    APPLICATION    TO   COMMISSIONERS. 

To  the  Commissioners  of  the  Town  of  Oxford,  in  the  county 
of  Chenango  : 

The  undersigned,  a  resident  of  said  town,  and  liable  to  be  as- 
sessed for  highway  labor  therein,  hereby  makes  application  to 
you,  to  lay  out  a  highway  in  said  town  commencing  at,  {here 
state  the  route  with  stifficietit  certainty,  by  courses,  ^^c.,]  which 
said  highway,  will  pass  through  the  improved,  [or  enclosed,  or 
cultivated,']  lands  of  John  Brown  and  Alvin  Wheeler,  who  do 
not  consent  to  the  laying  out  of  the  same.  Dated  Oxford,  May 
2d,  1849. 

Joseph  Baxter. 

No  highway  can  be  laid  out  through  enclosed,  improved,  or 
cultivated  land,  without  the  consent  of  the  owner  or  occupant 
thereof,  unless  certified  to  be  necessary  by  twelve  reputable 
freeholders  of  the  town.     (Sec.  70.) 

Every  person  applying  for  the   laying   out  of  a  highway 


428  OF  HIGHWAYS. 

through  any  such  land,  must  cause  notices  in  writing  to  be 
posted  up  at  three  of  the  most  pubhc  places  of  the  town,  speci- 
fying, as  near  as  may  be,  the  route  of  the  proposed  highway, 
the  several  tracts  of  land  through  which  the  same  is  proposed 
to  be  laid,  and  the  time  and  place  at  which  the  freeholders  will 
meet  to  examine  the  ground.  Such  notice- must  be  posted  up 
at  least  six  days  before  the  time  specified  therein,  for  the  meet- 
ing of  the  freeholders.     (1  R.  S.  G29,  sec.  71.) 

FORM    OF    NOTICE    OF    APPLICATION,   AND    OF    THE    MEETING 
OF    FREEHOLDERS. 

Notice  is  hereby  given,  that  the  undersigned  has  made  a])pli- 
cation  to  the  commissioners  of  highways  of  the  town  of  Oxford, 
county  of  Chenango,  for  the  laying  out  of  a  highway,  commen- 
cing, [here  insert  description  of  route,  br/  courses,  S)^c.,\  and 
which  highway  will  pass  through  the  improved  lands  of  John 
Brown  and  Alvin  Wheeler,  and  that  on  the  28th  day  of  May, 
instant,  at  two  o'clock  in  the  afternoon,  at  the  house  of  George 
Morris  in  said  town,  twelve  freeholders,  duly  qualified  for  that 
purpose,  will  meet  to  examine  the  grounds,  and  certify  with 
respect  to  the  necessity  and  propriety  of  such  highway. 

Dated  Oxford,  May  20th,  1849. 

Joseph  Baxter. 

If  the  freeholders  appear  at  the  time  and  place  specified  in 
the  notice,  they  must  be  sworn  well  and  truly  to  examine  and 
certify  in  regard  to  the  necessity  and  propriety  of  the  highway 
applied  for.  The  oath  may  be  administered  by  a  Justice  of  the 
Peace,  or  any  officer  authorized  to  administer  oaths.  (1  R.  S. 
629,  sec.  72.) 

FORM    OF    OATH    TO    THE    FREEHOLDERS. 

"You,  and  each  of  you,  do  solemnly  swear,  well  and  truly 
to  examine  and  certify  in  regard  to  the  necessity  and  propriety 
of  th(;  highway  applied  for,  through  the  lands  of  John  Brown 
and  Alviu  Wheeler." 

Thf!  cotiimissioners  must  personally  examine  the  route  of  the 
proposed  highway,  and  hear  any  reasons  that  may  be  oflercd, 


OF  HIGHWAYS.  429 

for  or  against  laying  out  the  same.  If  they  are  of  opinion  that 
such  highway  is  necessary  and  proper,  they  must  make  and 
subscribe  a  certificate  in  writing,  to  that  effect,  which  must  be 
delivered  to  the  commissioners  of  highways  of  the  town.  (Id. 
sec.  73.) 

FORM    OF    CERTIFICATE    OF    FKEEIIOLDERS 

Chenango  Count ij,  j 
Town  of  Oxford,   \ 

We,  the  undersigned,  twelve  reputable  freeholders  of  the  said 
town,  not  interested  in  the  lands  through  which  the  road  de- 
scribed in  the  annexed  notice  is  to  be  laid,  nor  of  kin  to  any 
owner  thereof,  having  appeared  at  the  time  and  place  specified 
in  the  said  notice,  and  having  been  duly  sworn  well  and  truly 
to  examine  and  certify  in  regard  to  the  necessity  and  propriety 
of  the  highway  applied  for  ;  and  having  proceeded  to  and  per- 
sonally examined  the  route  of  such  highway,  and  heard  all  the 
reasons  that  were  offered,  for  and  against  laying  out  the  same, 
do  hereby  certify,  that  we  are  of  opinion  that  the  highway 
applied  for,  and  described  in  the  annexed  notice,  is  necessary 
and  proper. 

In  witness  whereof,  we  have  hereunto  subscribed  our  names, 
this  28th  day  of  iMay,  1849. 

A.  B.  1 

CD.  \  Freeholders. 

E.  F.  &c.  ) 

Before  the  commissioners  determine  to  lay  out  the  highway 
so  applied  for  and  certified,  they  must  cause  notice  in  writing 
to  be  given  to  the  occupant  of  the  land  through  which  the  road 
is  to  run,  of  the  time  and  place  at  which  they  will  meet  to 
decide  on  the  application. 

FORM    OF    NOTICE    TO    THE    OCCUPANT  OF  THE   LAND  THROUGH 
WHICH    THE    ROAD    IS    TO    RUN. 

To  Mr.  John  Broion : — 

Please  take  notice,  that  on  the  4th  day  of  June  next,  at  two 
o'clock  in  the  afternoon,  at  the  house  of  Ira  Davis,  in  the  said 
town  of  Oxford,  the  undersigned,  commissioners  of  highways 
of  said  town,  will  meet  to  decide  on  the  application  of  Joseph 


430  OF  HIGHWAYS. 

Baxter,  for  the  laying  out  of  a  highway,  commencing  [here 
describe  the  7'07ite,]  twelve  freeholders  having  certified  that  the 
said  road  is  necessary  and  proper.  Dated  Oxford,  May  20th, 
1849. 

*  r»   r»*  ?  Commissioners. 

o.  u.  ^ 

The  foregoing  notice  must  be  served  by  delivering  the  same 
to  the  occupant,  or  if  he  be  absent,  by  leaving  the  same  at  his 
dwelling  house  ;  and,  in  either  case,  at  least  three  days  before 
the  time  of  meeting.     (1  R.  S.  629,  sec.  75.) 

The  commissioners  must  meet  at  the  time  specified  in  the 
notice,  and  hear  any  reasons  that  may  be  offered  for  or  against 
laying  out  the  highway.  If  they  determine  to  lay  out  the 
highway,  they  must  make  out  and  subscribe  a  certificate  of 
such  determination,  describing  the  road  so  laid  out  particularly, 
by  routes  and  bounds,  and  by  its  courses  and  distance,  and 
deposit  the  same  with  the  town  clerk.     (Id.  sec.  76.) 

FORM    OF    CERTIFICATE    FOR    LAYING    OUT    HIGHWAY. 

At  a  meeting  of  the  commissioners  of  highways  of  the  town 
of  Oxford,  in  the  county  of  Chenango,  at  the  house  of  Ira 
Davis,  in  said  town,  on  the  4th  day  of  June,  1849,  the  said 
commissioners  having  met  and  deliberated  on  the  subject  matter 
of  this  order,  upon  the  application  of  Joseph  Baxter,  a  resident 
of  said  town,  and  liable  to  be  assessed  to  work  on  the  highways 
therein,  for  the  laying  out  of  the  highway  hereinafter  described 
— and  on  the  certificate  of  twelve  reputable  freeholders  of  said 
town,  convened  and  duly  sworn,  after  due  public  notice,  as  re- 
quired by  the  statute,  certifying  that  such  highway  is  necessary 
and  proper  ;  and  notice  in  writing,  of  at  least  throe  days,  having 
been  given  in  due  form  of  law,  to  John  Brown  and  Alvin 
Wheeler,  occupants  of  the  lands  through  which  the  highway 
hereinafter  described  is  to  run,  that  the  undersigned  would  meet 
at  this  time  and  place,  to  decide  on  the  application  aforesaid  ; 
and  the  undersigned  having  heard  the  reasons  for  and  against 
laying  out  sucli  highway :  It  is  ordered,  determined,  and  cer- 
tified, that  a  public  highway  shall  be,  and  the  same  is  hereby 
laid  out,  pursuant  to  said  application,  whereof  a  survey  hath 
been  made,  and  is  as  follows,  to  wit :"  beginning  [here  insert  the 


OF  HIGHWAYS.  431 

survey  of  the  road.]     And  the  line  of  the  said  survey,  is  to  be 
the  centre  of  said  highway,  which  is  to  be  three  rods  wide. 

In  witness  whereof,  we  have  here  subscribed  our  names,  this 
4th  day  of  June,  1849. 

A.  B.  ; 

C  D  [  Commissioners. 

If  the  commissioners  refuse  to  lay  out  the  highway,  as  certi- 
fied by  the  twelve  freeholders,  they  should  make  the  following 
order : 

FORM    OF    ORDER    REFUSING    TO    LAY    OUT    OR    ALTER    THE 
HIGHWAY. 

At  a  meeting  of  the  undersigned,  commissioners  of  highways 
of  the  town  of  Oxford,  in  the  county  of  Chenango,  at  the  house 
of  Ira  Davis,  in  said  town,  on  the  4th  day  of  June,  1849, 
having  deliberated  on  the  subject  matter  of  this^order  ;  it  is 
hereby  ordered  and  determined,  that  the  application  of  Joseph 
Baxter,  dated  the  20th  day  of  May,  1849,  for  the  laying  out 
[or  altering,  as  the  case  may  6e,]  of  the  highway  therein  men^ 
tioned  be,  and  the  same  is  hereby  denied  and  refused. 

In  witness  whereof,  we  have  hereunto  set  our  names,  this 
4th  day  of  June,  1849. 

A.  B.  ) 

Q  -pj  >  Commissioners. 

The  commissioners  of  highways  and  the  owner  of  the  land 
through  which  the  road  is  to  run,  may  agree  upon  the  damages 
which  are  allowed  by  statute,  provided  such  damages  do  not 
exceed  one  hundred  dollars.     (Laws  of  1847,  ch.  455,  sec.  22.) 

FORM    OF    AGREEMENT    AS    TO    DAMAGES. 

It  is  hereby  agreed  between  Jesse  Orcutt  and  Peter'  Pray, 
commissioners  of  highways  of  the  town  of  Oxford,  of  the  one 
part,  and  John  Brown  of  the  other  part,  that  the  damages  sus- 
tained by  the  said  John  Brown,  by  reason  of  the  laying  out 
and  opening  of  a  highway  through  the  lands  of  the  said  John 
Brown,  on  the  application  of  Joseph  Baxter,  by  order  of  the 


432  OF  HIGHWAYS. 

commissioners;  dated  the  4th  day  of  June,  1849,  be  fixed  an  ^ 

liquidated  at  the  sum  of  fifty  doHars. 

Witness  our  hands,  this  5th  day  of  June,  1849. 

Jesse  Orcutt,  j  ^^         .    . 

T,  „  V  Commissioners. 

Peter  Fray,     ^ 

John  Brown. 

If  the  owner  of  the  land  through  which  the  road  is  to  run, 
will  release  his  damages,  adopt  the  following  form  : 

FORM    OF    RELEASE    OF    DAMAGES. 

I  hereby  release  to  the  town  of  Oxford,  all  claim  to  damages, 
by  reason  of  the  laying  out  and  opening  of  a  highway  through 
my  lands,  by  order  of  the  commissioners  of  highways.  Dated 
the  5th  day  of  June,  1849. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal, 
the  day  and  year  above  mentioned. 

John  Brown,  [l.  s.J 

In  case  damages  are  to  be  assessed,  for  the  laying  out,  alter- 
ing, or  discontinuing  any  highway,  it  is  now  by  law,  to  be  as- 
sessed, by  not  less  than  three  commissioners,  to  be  appointed  by 
the  county  court  of  the  county  in  which  such  road  or  highway 
shall  be,  on  the  application  of  the  commissioner  or  commission- 
ers of  the  town  ;  and  the  commissioner  so  appointed,  must  take 
the  oath  of  office  prescribed  by  the  constitution,  and  proceed, 
on  receiving  at  least  six  days  notice  of  the  time  and  place,  to 
meet  the  highway  commissioners  and  take  a  view  of  tlie  prem- 
ises, hear  the  parties,  and  such  witnesses  as  may  be  offered  be- 
fore them  ;  and  tliey  must  all  moot  and  act,  and  assess  all  dam- 
ages which  may  be  required  to  be  assessed  on  the  same  high- 
way, and  are  authorized  to  administer  oatlis  lo  witnesses  pro- 
duced before  them,  and  when  they  shall  all  have  mot  and  acted 
the  assessment  agreed  to  by  a  mnjovUy  of  them  will  bo  valid  ; 
and  when  so  made  must  be  delivered  to  a  commissioner  of 
highways  of  the  town,  who,  within  ten  days  aftcu'  rccr-iving  it, 
must  file  it  in  the  office  of  the  town  clerk.  (Laws  1S47,  ch. 
455.) 

FORM   OF  THE  FINI)IN(i  OF  THE  COM  MIS.SIONE  RS. 

Chenango  County^  ss. — We,  llie  undersigned,  three  commis- 


OF  HIGHWAYS. 


433 


sioners,  appointed  by  the  county  court  of  the  county  aforesaid, 
pursuant  to  statute  in  such  case  made  and  provided,  having 
taken  the  oath  of  office  prescribed  by  the  constitution,  and  pro- 
ceeded, after  receiving  six  days  notice  of  the  time  and  place, 
together  with  the  undersigned  commissioners  of  highways  of 
the  town  of  Oxford,  county  aforesaid,  to  assess  the  damages 
sustained  by  John  Brown,  by  reason  of  the  laying  out  and 
opening  of  a  road  through  his  enclosed  land,  in  pursual^e  of  an 
application  of  the  commissioners  of  the  said  town  of  Oxford,  bear- 
ing date  the  1st  day  of  June,  1849,  after  having  viewed  and 
examined  the  premises,  heard  the  parties,  and  the  witnesses 
offered  by  them,  determine  and  assess  the  said  damages  of  the 
said  John  Brown,  at  fifty  dollars. 

Given  under  our  hands,  at  Oxford  aforesaid,  this  1st  day  of 
July,  1849. 

A.  B.  ; 

Commissioners. 


Commissioners  of  Highways. 

Any  person  conceiving  himself  aggrieved,  or  the  commis- 
sioner, or  commissioners,  on  the  part  of  the  town,  feeling  dis- 
satisfied by  any  such  assessment,  may  within  twenty  days  after 
the  filing'thereof  in  the  town  clerk's  office,  signify  the  same  by 
notice  in  writing,  and  serving  the  same  on  the  town  clerk,  and 
on  the  opposite  party,  that  is,  the  persons  for  whom  the  assess- 
ments were  made,  or  the  commissioner  or  commissioners  of 
highways,  as  the  case  may  be,  asking  for  a  jury  to  re-assess  the 
damages,  and  specifying  a  time,  not  less  than  ten,  nor  more 
than  twenty  days,  from  the  time  of  filing  said  assessment  when 
such  jury  will  be  drawn  at  the  clerk's  office  of  an  adjoining 
town  of  the  same  county  by  the  town  clerk  thereof.  (Laws 
1847,  ch.  455,  sec.  3.) 

FORM  OF  NOTICE  OF  APPEAL. 

To  James  Davis,  town  clerk  of  the  town  of  Oxford : — 

Sir  : — You  will  please  take  notice  that  I  require  a  review  of 
the  assessment  of  damages  made  by  A.  B.,  C.  D.,  E.  F.,  com- 
missioners appointed  by  the  County  Court  of  the  county  of 
Chenango,  and  by  G.  H.  and  I.  J.  commissioners  of  highways 

28 


434  OF  HIGHWAYS. 

in  the  town  of  Oxford,  county  aforesaid,  dated  the  1st  day  of 
July,  1849,  for  a  road  running  through  the  land  of  John  Brown 
in  the  said  town.  And  I  hereby  require  that  a  jury  be  drawn 
at  the  clerk's  office  of  the  town  of  Norwich,  county  aforesaid, 
on  the  2oth  day  of  July  instant,  for  the  purpose  of  reviewing 
the  said  assessment.     Dated  July  8th,  lb49. 

Henry  Stow, 
Commissioner  of  the  town  of  Oxford. 

The  foregoing  notice  must  be  served  upon  the  opposite  party 
within  three  days  after  service  upon  the  town  clerk.  It  may  be 
served  personally,  or  by  being  left  at  the  dwelling-house  of  the 
party,  with  some  person  in  charge  thereof,  or,  if  there  be  no  such 
person,  or  the  house  be  closed,  then  by  fixing  the  same  upon  the 
outer  door  of  said  dwelling-house.    (Laws  1847,  ch.  455,  sec.  3.) 

At  the  time  and  place  mentioned  in  the  notice,  the  town  clerk 
of  such  adjoining  town,  having  received  three  days  previous 
notice  that  such  jury  is  to  be  drawn,  from  the  person  or  party 
asking  the  re-assessnient,  must  deposite  in  a  box  the  names  of 
all  such  persons  then  residents  of  his  town,  whose  names  are 
on  tJie  last  list  filed  in  said  town  clerk's  office,  of  those  selected 
and  relumed  as  jurors,  who  are  not  interested  in  the  lands 
through  which  such  road  is  located,  nor  of  kin  to  either  or  any 
of  tlie  parties,  and  must  draw  therefrom  the  names  of  twelve 
persons,  and  make  a  certificate  of  such  names,  and  the  purposes 
for  which  they  are  drawn,  and  deliver  the  same  to  the  party 
first  asking  for  the  re-assessment.     (See.  4.) 

FORM    OF    CERTIFICATE. 

Town  of  Norwich,  ss. — This  is  to  certify,  that  the  following 
are  the  names  of  twelve  persons  drawn  by  me  as  a  jury,  for  the 
purpose  of  reviewing  the  assessment  of  damages  made  by  A. 
B.,  C.  I),  and  E.  F.  connnissioners  appointed  by  the  County 
Court,  of  the  county  of  Chenango,  and  by  C  H.  and  1.  J.  com- 
missioners of  highways  in  tiic  town  of  Oxford  county  afore- 
said, dated  the  1st  day  of  July,  1849.  for  a  road  running  through 
the  land  of  John  Brown  in  said  town,  in  pursuance  of  a  notice 
to  that  cAXvA-A  served  on  me  by  Henry  Slow,  commissioner  of  the 
town  of  Oxford  aforesaid. 

Witness  my  hand,  tin's  25111  day  of  July  18^9. 

William  Perkins,  Town  Clerk 

of  the  town  of  Norwich. 


OF  HIGHWAYS.  435 

The  party  receiving  such  certificate  must  within  twenty  four 
hours  thereafter,  deUver  the  same  to  a  Justice  of  the  Peace  of  the 
town  in  which  the  damages  are  to  he  assessed.  It  is  the  duty 
of  the  Justice  forthwith  to  issue  a  summons  to  one  of  the  con- 
stables of  his  town  directing  him  to  summon  the  persons  named 
in  said  certificate,  and  specifying  a  time  and  place  in  the  sum- 
mons at  which  the  persons  summoned,  must  meet ;  but  no  meet- 
ing of  such  persons  can  be  had  within  twenty  days  from  the 
time  of  filing  the  assessment  of  damages  in  the  town  clerk's 
office,  by  the  commissioner  or  commissioners  of  highways. 
(Laws  1847,  ch.  455,  sec.  5.) 

FORM    OF    A    SUMMONS    FOR    A    JURY. 

Chenango  County^  ^ 
Town  of  Oxford,     ^ 

To  any  Constable  of  the  Town  of  Oxford,  Greeting : — 

On  application  of  Henry  Stow,  commissioner  of  the  town  of 
Oxford,  and  the  delivery  by  him  to  me,  the  undersigned,  a  Jus- 
tice of  the  Peace  of  the  town  of  Oxford  aforesaid,  of  the  an- 
nexed certificate,  you  are  hereby  commanded,  in  the  name  of 
the  people  of  the  State  of  New  York,  to  summon  the  twelve 
persons  in  the  said  certificate  named,  to  appear  as  a  jury  at  the 
Drovers'  Inn,  in  said  town  of  Oxford,  on  the  1st  day  of  August 
next,  at  two  o'clock  in  the  afternoon,  for  the  purpose  of  review- 
ing an  assessment  of  damages  made  by  A.  B.,  C.  D.,  E.  F., 
commissioners  appointed  by  the  County  Court  of  the  county  of 
Chenango,  and  by  G.  H.  and  I.  J.  commissioners  of  highways 
in  tha  town  of  Oxford  county  aforesaid,  dated  the  1st  day  of 
July,  IS  19,  for  a  road  running  through  the  improved  land  of 
John  Brown  in  the  said  town.  And  have  you  then  there,  the 
names  of  the  jurors  and  this  precept. 

Given  under  my  hand,  this  28th  day  of  July,  1849. 

David  Long,  Justice. 

Upon  such  persons  appearing  at  the  time  and  place  mentioned 
in  the  summons,  the  Justice  who  issued  the  summons  must 
draw  by  lot  six  of  the  persons  attending  to  serve  as  a  jury,  and 
the  first  six  persons  drawn  who  are  free  from  all  legal  exceptions 
must  be  the  jury  to  re-assess  all  the  damages  required  to  be  re- 
assessed upon  the  said  highway.     (Sec.  6.) 


436  OF  HIGHWAYS. 

The  jury  must  be  sworn  by  the  Justice,  well  and  truly  to  de- 
termine and  re-assess  such  damages  as  shall  be  submitted  to 
their  consideration.     (Id.) 

The  jury  must  take  a  view  of  the  premises,  hear  the  parties, 
and  such  witnesses  as  may  be  offered  and  sworn  before  them, 
and  render  their  verdict  in  writing  under  their  hands.     (Id.) 

FORM    OF    VERDICT    OF    JURY    ASSESSING    DAMAGES. 

Chenango  County,  55.— We,  the  undersigned,  freeholders  of 
said  county,  being  the  jury  summoned,  drawn,  and  sworn  by 
David  Long,  a  Justice  of  the  Peace  of  the  town  of  Oxford, 
county  aoresaid,  to  review  an  assessment  of  damages  made  by 
A.  B.  C.  D.  E.  F,  commissioners  appointed  by  the  county  court 
of  the  county  of  Chenango,  and  by  G.  H.  and  I.  J.,  commis- 
sioners of  highways  in  the  town  of  Oxford,  county  aforesaid, 
dated  the  1st  day  of  July,  1849,  for  a  road  running  through  the 
improved  land  of  John  Brown,  in  the  said  town,  not  being  inter- 
ested in  the  lands  through  which  such  road  is  located,  nor  of 
kin  to  either  or  any  of  the  parties,  after  having  viewed  and  ex- 
amined the  premises,  heard  the  parties,  and  the  witnesses  offered 
by  them,  and  sworn  by  the  said  Justice,  determine  and  assess 
the  said  damages  of  the  said  John  Brown,  at  sixty-five  dollars. 
Given  under  our  hands,  this  1st  day  of  August,  1849. 

[Jw'ors  names.] 

The  verdict  of  the  jury  must  be  certified  by  the  Justice,  and 
be  delivered  to  the  commissioners  of  highways  of  the  town. 
(Laws  1847,  ch.  455,  sec.  6.) 

It  is  provided  that  in  all  cases  of  assessments  of  damages  by 
commissioners  appointed  by  a  county  court,  the  costs  thereof 
must  be  paid  by  the  town  in  which  the  damages  are  assessed. 
In  case  of  re-assessment  of  damages  by  a  jurj^,  on  the  applica- 
tion of  ilic  commissioners  of  highways  of  any  town,  and  the 
fust  assessment  is  reduced,  ihe  costs  of  such  assessment  must 
be  paid  by  the  j)aity  claiming  the  damages — otherwise,  by  the 
town.  In  case  a  re-assessment  of  damages  is  had  on  the  appli- 
cation of  the  party  for  wliom  the  damages  were  assessed,  and 
sucli  purly  fail  to  inci(;ase  the  same,  Ik^  nnist  pay  the  costs;  but 
when  such  damages  are  increased  by  die  jury,  tlie  costs  must 
be  [)aid  ]>y  the  town.     When    a|t])heafions  are  made  by  two  or 


OF  HIGHWAYS.  437 

more  persons  for  the  re-assessment  of  damages  by  a  jury,  such 
jury  must  be  obtained  in  conformity  with  the  notice  first  served 
upon  the  clerk  of  the  town  in  which  the  damages  are  to  be  as- 
sessed ;  and  all  persons  liable  for  costs  are  liable  in  proportion  to 
the  amount  of  dam.ages  respectively  assessed  to  them,  by  the 
first  assessment  which  may  be  recovered  in  an  action,  at  the 
suit  of  any  person  or  persons  entitled  to  the  same,  before  a  Jus- 
tice of  the  Peace.     (Laws  1817,  ch.  455,  sec.  7.) 

In  assessing  the  damages  for  laying  out  or  altering  any  pri- 
vate road,  the  commissioners  of  highways  of  the  town  where 
the  road  is  situated  must  serve  a  notice  of  the  assessment  upon 
the  town  clerk  of  the  town,  and  upon  the  persons  interested  in 
the  road,  specifying  a  time  when  a  jury  of  the  town  will  be 
drawn  by  the  town  clerk  at  his  office,  which  time  must  be  within 
not  less  than  six,  nor  more  than  ten  days  from  the  time  of  ser- 
vice of  the  notice.  At  the  time  mentioned  in  the  notice,  the 
clerk  must  proceed  to  draw  by  lot,  from  the  jury  list  last  filed, 
the  names  of  twelve  persons,  and  make  a  certificate  of  such 
names  and  the  purposes  for  which  they  were  drawn.  The  per- 
sons so  drawn  must  be  summoned,  six  of  whom  must  be  drawn 
by  lot,  and  sworn  as  a  jury.  The  jury  must  take  a  view  of  the 
premises,  hear  the  parties  and  such  witnesses  as  may  be  offered 
and  sworn  before  them,  and  render  their  verdict  in  writing,  un- 
der their  hands,  which  must  be  certified  and  delivered  to  the 
commissioner  of  highways  of  the  town.  (Sec.  10.)  The  same 
jury  must  assess  all  damages  required  to  be  assessed  for  the 
same  road.     (Id.) 

In  re-assessing  damages,  town  clerks  are  allowed  the  sum  of 
fifty  cents  for  drawing  and  certifying  a  jury  ;  and  a  constable, 
for  summoning  such  jury,  two  dollars,  except  when  the  jury 
are  taken  from  the  same  town  in  which  the  road  is  located,  in 
which  case  he  is  allowed  only  one  dollar.  Jurors  who  are  sum- 
moned from  an  adjoining  town,  and  attend,  but  do  not  serve,  are 
entitled  each  to  fifty  cents — and  if  they  serve,  to  one  dollar ;  if 
from  the  same  town,  and  attend,  but  do  not  serve,  twenty-five 
cents  ;  if  they  serve,  fifty  cents  each.     (Sec.  19.) 

Any  person  who  conceives  himself  aggrieved  by  any  determi- 
nation of  the  commissioners  of  highways,  either  in  laying  out, 
altering,  or  discontinuing  any  road,  may,  at  any  time  within 
sixty  days  after  such  determination  has  been  filed  in  the  office 


438  OF  HIGHWAYS. 


FORM    OF    APPEAL    TO    COUNTY    JUDGE. 

To  Alfred  Wheeler,  Judge  of  the  County  Court  of  the  County 
of  Chenango : — 

I,  the  undersigned,  a  resident  of  the  town  of  Oxford,  county 
aforesaid,  and  hable  to  be  assessed  for  highway  labor,  conceiv- 
ing myself  to  be  aggrieved  by  the  determination  of  the  commis- 
sioners of  highways  of  the  said  town  of  Oxford,  contained  in 
the  order,  a  copy  of  which  is  hereto  annexed,  do  hereby  appeal 
to  you  therefrom.  This  appeal  is  brought  to  reverse  the  deter- 
mination of  the  commissioners,  on  the  ground  that  the  laying 
out  of  said  highway  is  unnecesary  and  improper. 

Made  and  signed  by  me,  this  Ist  day  of  September,  1849. 

Henry   Tracy. 

form  of  notice  by  judge  to  commissioners. 

To  William  Peters,  Samuel  Strong,  and  John  Roberts,  Com- 
missioners of  Highways  of  the  town  of  Oxford,  in  the  County 
of  Chenango : — 

Please  take  notice  that  Henry  Tracy  has  appealed  to  me,  the 
undersigned,  judge  of  the  county  of  Chenango,  from  your  de- 
termination contained  in  your  order,  dated  the  28th  day  of  July, 
1849,  laying  out  [or  altering  or  discontinuing]  the  highway 
therein  mentioned  ;  and  that  I  shall  attend  on  Monday  the  10th 
instant,  at  ten  o'clock  in  the  morning,  at  the  inn  of  Anthony 
Dillon,  in  said  town,  to  hear  and  decide  the  said  appeal.  Dated 
Norwich,  September  1st,  1849. 

Alfred  Wheeler, 

Judge  of  Chenango  County. 

form  of  notice  of  the  hearing  of  the  appeal  TO  the 

APPLICANT. 

To  Henry  Tracy  : — 

Please  take  notice  that  I  shall  attend  at  the  inn  of  Anthony 
Dillon,  in  the  town  of  Oxford,  on  Monday  the  10th  instant,  at 
ten  o'clock  in  the  morning,  to  hear  and  decide  the  appeal  from 
the  determination  of  the  commissioners  of  highways,  as  con- 
of  tlie  town  clerk,  appeal  to  the  county  judge  of  the  county. 
(Sec.  8.)  \ 


OF  HIGHWAYS.  439 

tained  in  their  order,  dated  the  28th  day  of  July,  1849,  upon 
your  apphcation. 

Dated  Norwich,  September  1st,  1849. 

Alfred  Wheeler, 

Judge  of  Chenango  County. 

FORM    OF    SUBPOENA    TO    A    WITNESS    TO    ATTEND    ON    THE 

APPEAL. 

Chenango  County,  ss. 

To  John  Doe,  Richard  Roe,  cfcc,  Greeting : — 

You,  and  each  of  you,  are  hereby  commanded,  in  the  name 
of  the  people  of  the  state  of  New  York,  to  appear  before  the 
undersigned,  county  judge  of  Chenango  county,  at  the  inn  of 
Anthony  Dillon,  in  the  town  of  Oxford,  in  said  county,  on  the 
10th  day  of  September  instant,  at  ten  o'clock  in  the  forenoon,  to 
testify  respectively  in  the  matter  of  a  certain  appeal  made  from 
the  decision  of  the  commissioners  of  highways,  of  the  said  town 
of  Oxford,  to  the  undersigned,  and  then  and  there  to  be  heard 
on  the  part  and  in  behalf  of  Henry  Tracy. 

Given  under  my  hand,  at  Norwich,  the  5th  day  of  Septem- 
ber, 1849. 

Alfred  Wheeler, 

Judge  of  Chenango  County. 

form    op    the    decision    of    the    judge,    upon    the    APPEAL. 

Whereas,  on  the  1st  day  of  September,  in  the  year  eighteen 
hundred  and  forty  nine,  Henry  Tracy,  of  the  town  of  Oxford, 
in  the  county  of  Chenango,  appealed  to  the  undersigned,  county 
judge  of  Chenango  county,  from  the  order  and  determination  of 
the  commissioners  of  highways  of  said  town,  bearing  date  the 
28th  day  of  July,  1849,  copies  of  which  said  order  and  appeal 
are  hereto  annexed. 

And  within  sixty  days  after  such  order  and  determination  of 
the  said  commissioners  of  highways  had  been  filed  in  the  office 
of  the  town  clerk  of  Oxford  aforesaid,  the  undersigned  appointed 
the  time  and  place  of  the  hearing  of  the  said  appeal  to  be  on 
the  10th  day  of  September,  1849,  at  the  inn  of  Anthony  Dillon, 
in  the  said  town  of  Oxford,  and  caused  written  notice  of  the 
said  appeal,  specifying  therein  that  the  said  judge  would  attend 
at  the  said  time  and  place  to  hear  the  said  appeal,  to  be  served 


440  OF  HIGHWAYS. 

on  the  said  commissioners  and  upon  the  said  Henry  Tracy,  the 
apphcant  for  said  order,  at  least  three  days  before  the  time  and 
place  of  meeting  as  aforesaid,  in  the  manner  prescribed  and 
directed  by  the  statute  in  such  case  made  and  provided. 

And  the  undersigned  attended  at  the  time  and  place  men- 
tioned in  the  said  notice,  to  hear  the  proofs  and  allegations  of 
the  parties,  and  such  proceedings  were  thereupon  had  ;  and  hav- 
ing heard  the  said  proofs  and  allegations,  the  undersigned  there- 
upon adjudged  and  decided,  and  doth  adjudge  and  decide,  that 
the  order  and  determination  of  the  commissioners  aforesaid  be, 
and  the  same  is  hereby  reversed  [or  affirmed.] 

In  witness  whereof,  T  have  hereunto  set  my  hand,  this  10th 
day  of  September,  1849. 

Alfred  Wheeler,  Judge  of 
the  County  of  Chenango. 

If  the  order  appealed  from,  is  for  refusing  to  lay  out  a  road, 
and  the  Judge  reverses  the  decision,  he  should  add  to  the  fore- 
going decision,  thus  : 

"And  I  do  hereby  farther  order,  adjudge,  and  determine,  that 
a  highway  be,  and  the  same  is  hereby  laid  out,  pursuant  to  the 
application  of  the  said  Henry  Tracy,  according  to  a  survey 
thereof,  which  I  have  caused  to  be  made  as  follows  ;  [here  in- 
sert the  survey  of  the  road.]  And  I  do  further  order,  that  the 
line  above  mentioned  is  to  the  centre  Hue  of  the  said  highway, 
v/hich  is  to  be  of  the  width  of  three  rods. 

"  in  witness  whereof,  &.c.,"  [as  above.] 

In  case  the  County  Judge  has  his  residence  in  tho  town,  or 
has  an  interest  in  the  lands  through  which  the  road  is  laid  out, 
or  in  case  he  is  of  kin  to  any  of  the  persons  interested  in  said 
lands,  or  in  case  of  his  disability  for  any  cause,  one  of  the  Judges 
of  the  Court  of  Sessions  must,  after  the  expiration  of  sixty  days 
from  the  filing  of  the  order  or  determination  of  the  conmiission- 
ers,  in  the  oflicc  of  the  town  clerk,  appoint,  in  writing,  three  dis- 
interested freeholders,  who  have  not  been  named  by  the  parties 
interested  in  the  appeal,  and  who  are  residents  of  the  county, 
but  not  of  the  town  in  which  the  road  is  located,  as  referees,  to 
liear  and  determine  all  the  appeals  that  may  liave  been  brought 
within  the  said  sixty  days,  and  must  notify  them  of  their  ap- 
pointment, and  deliver  to  them  all  papers  pertaining  to  the  mat- 


OF  HIGHWAYS.  441 

ters  referred  to  them.  Upon  receiving  notice  of  their  appoint- 
ment, the  referees  will  possess  all  the  powers,  and  must  discharge 
all  the  duties,  otherwise  possessed  and  discharged,  by  the  coun- 
ty judge.  Before  proceeding  to  hear  the  appeal  or  appeals,  they 
must  be  sworn  by  some  officer  authorized  to  take  affidavits,  to 
be  read  in  courts  of  record,  faithfully  to  hear  and  determine 
the  matters  referred  to  them.  (Laws,  1847,  ch.  455,  sec.  8.) 
"When  the  referees  make  any  decision,  laying  out,  alterhig,  or 
discontinuing  any  road,  in  whole  or  in  part,  it  is  the  duty  of  the 
commissioners  of  highways  of  the  town,  to  carry  out  such  de- 
cision, and  such  decision  must  remain  unaltered  for  the  term  of 
four  years  from  the  time  the  same  shall  have  been  filed  in  the 
office  of  the  town  clerk.     (Sec.  9.) 

Every  referee  appointed  as  above,  is  entitled  to  two  dollars  for 
every  day  employed  in  the  hearing  and  decision  of  such  appeal 
or  appeals,  to  be  paid  by  the  party  appealing,  where  the  determi- 
nation of  the  commissioners  is  conJQrmed,  but,  where  it  is  rever- 
sed, to  be  a  charge  upon  the  county.     (Id.) 

5.  Regulation  of  Public  Stages. 

It  is  provided,  that  no  person  owning  any  carriage  running  or 
travelling  upon  any  road  in  this  state,  for  the  conveyance  of  pas- 
sengers, shall  employ,  or  continue  in  employment,  any  person 
to  drive  such  carriage,  who  is  addicted  to  drunkenness,  or  to  the 
excessive  use  of  spirituous  liquor,  under  the  penalty  of  five  dol- 
lars a  day  for  all  the  time  during  which  he  shall  have  kept  any 
such  driver  in  his  employment,  to  be  sued  for  by  the  district 
attorney  of  the  county  in  which  the  owner  resides.  (1  R.  S. 
873,  sec.  2.) 

If  any  driver,  whilst  actually  employed  in  driving  any  such 
carriage,  is  guilty  of  intoxication  to  such  a  degree  as  to  endanger 
the  safety  of  the  passengers  in  the  carriage,  it  is  the  duty  of  the 
owner  of  the  carriage,  on  receiving  written  notice  of  the  fact, 
signed  by  any  one  of  the  passengers,  and  certified  by  him  on 
oath,  forthwith  to  discharge  the  driver  from  his  employment ; 
and  every  owner  who  retains,  or  has  in  his  service  within  six 
months  after  the  receipt  of  such  notice,  any  driver  who  shall 
have  been  so  intoxicated,  will  forfeit  at  the  rate  of  five  dollars  a 
day  for  all  the  time  during  which  he  shall  have  kept  any  such 
driver  in  his  employment,  after  receiving  such  notice,  to  be  sued 
for  as  directed  in  the  preceding  section.     (Id.  sec.  3.) 


442  OF  HIGHWAYS. 

It  is  provided,  that  no  person  driving  any  carriage  upon  any 
turnpike  road  or  public  highway  within  this  state,  with  or  with- 
out passengers,  sliall  run  his  horses,  or  cause  or  permit  the  same 
to  run,  upon  any  occasion,  or  for  any  purpose  whatever.  F<very 
person  so  oftending  will  be  guilty  of  a  misdemeanor,  and,  on 
conviction,  must  be  fined,  not  exceeding  one  hundred  dollars, 
or  imprisoned,  not  exceeding  sixty  days,  at  the  discretion  of  the 
court.     (Id.  sec.  4.) 

It  is  not  lawful  for  the  driver  of  any  carriage,  used  for  the 
purpose  of  conveying  passengers  for  hire,  to  leave  the  horses  at- 
tached, thereto,  while  passengers  remain  in  the  carriage,  with- 
out first  making  the  horses  fast  with  a  sufficient  halter,  rope,  or 
chain,  or  by  placing  the  lines  in  the  hands.of  some  other  per- 
son, so  as  to  prevent  their  running.  The  penalty  for  oifending 
against  this  provision,  is  twenty  dollars,  to  be  recovered  by  ac- 
tion, to  be  commenced  within  six  months,  for  the  use  of  the 
poor.     (Id.  sec.  5.) 

The  owners  of  any  carriage,  running  or  travelling  upon  any 
turnpike  road,  or  public  highway,  for  the  conveyance  of  passen^ 
gers,  are  liable,  jointly  and  severally,  to  the  party  injured,  in  all 
cases,  for  all  injuries  and  damages  done  by  any  person  in  the 
employment  of  such  owner  or  owners  as  a  driver,  while  driving 
such  carriage,  to  any  person,  or  the  property  of  any  person,  whe- 
ther the  act  occasioning  the  injury  or  damage  be  wilful,  or  ne- 
gligent, or  otherwise,  in  the  same  manner  as  the  driver  would 
be  liable.     (Id.  sec.  6.) 

The  proprietor  or  proprietors  of  the  several  lines  of  stages, 
and  the  proprietors  of  the  several  canal  boat  lines,  and  the  pro- 
prietors of  the  several  steam  boats,  and  the  several  incorporated 
rail  road  companies,  and  the  keepers  of  the  several  inns  and  ta- 
verns within  the  state,  who  have  any  unclaimed  trunks,  boxes, 
or  baggage,  within  his,  their,  or  either  of  their  custody,  must 
immediately  enter  the  time  the  same  was  left,  with  a  proper 
description  thereof,  in  a  book,  to  be  by  them  provided  and  kept 
for  that  purpose.  In  case  the  name  and  residence  of  the  owner 
be  ascertained,  it  is  the  duty  of  the  person  having  the  property 
to  immediately  notify  the  owner  by  mail.     (I  R.  S.  874,  sec.  9.) 

If  no  information  is  obtained  as  to  the  owner,  it  is  the  duty  of 
the  person  having  possession  of  the  property,  to  make  out  a  cor- 
rect written  description  of  all  such  |)roj)erty  as  shall  have  been 
unclaimed  for  thirty  days,  staling  the  time  the  same  came  into 


OF  HIGHWAYS.  443 

his  possession.  He  must  forward  the  description  to  the  editor 
of  the  state  paper,  whose  duty  it  is,  on  the  first  Mondays  of 
July,  October,  January,  and  April,  in  each  year,  to  pubhsh  the 
same,  in  the  state  paper,  once  a  week  for  three  weei<s  succes- 
sively.    (Id.  sec.  10.) 

If  the  property  remains  unclaimed  for  sixty  days  after  the 
publication,  it  is  the  duty  of  the  person  or  company  having  pos- 
session of  it,  to  apply  to  a  Justice  of  the  Peace  of  the  town  or 
city  in  which  the  property  is  retained,  in  whose  presence,  and 
under  whose  direction,  it  must  be  opened  and  examined,  and 
an  inventory  taken  of  it  by  the  Justice.  If  the  name  and  resi- 
dence of  the  owner  is  ascertained  by  the  examination,  it  is  the 
duty  of  the  Justice  forthwith  to  direct  a  notice  thereof,  to  the 
owner,  by  mail  ;  and,  if  the  property  remains  unclaimed  for 
three  months  after  the  examination,  it  is  the  further  duty  of  the 
person  or  company  having  possession  of  it,  to  apply  to  a  Jus- 
tice of  the  Peace  as  aforesaid  ;  and  if  the  Justice  deems  the 
property  of  sufficient  value,  he  must  cause  it  to  be  sold  at  public 
auction,  giving  six  days  previous  notice  of  the  time  and  place 
of  the  sale.  From  the  proceeds  of  such  sale,  he  must  pay  the 
charges  and  expenses  legally  incurred  in  respect  to  the  property, 
or  a  rateable  proportion  thereof,  to  each  claimant,  if  insufficient 
for  the  payment  of  the  whole  amount.  The  Justice  is  required 
immediately  to  pay  the  balance  of  the  proceeds  of  the  sale,  if 
any,  to  the  overseers  of  the  poor  of  the  town  or  city,  for  the  use 
of  the  poor  thereof.  The  overseers  are  required  to  make  an  en- 
try of  the  amount  received,  and  the  time  of  receiving  it,  upon 
their  official  records  ;  and  it  will  be  subject,  at  any  time  within 
seven  years,  to  be  reclaimed  by,  and  refunded  to,  the  owner  of 
the  property,  his  heirs  or  assigns,  on  satisfactory  proof  of  own- 
ership.    (1  R.  S.  875,  sec.  11.) 

The  person  making  the  entry  of  unclaimed  property,  is  enti- 
tled to  twelve  and  a  half  cents  for  each  trunk,  box,  bale,  pack- 
age or  bundle  so  entered,  and  has  a  lien  on  the  property  so  en- 
tered, until  payment  is  made.  In  case  any  additional  expense 
is  incurred  for  printing,  the  lien  continues  until  payment  is  made 
for  such  additional  expense.     (Id.  sec.  12.) 

In  case  any  person  neglects  or  refuses  to  comply  with  the  fore- 
going provisions,  he  forfeits  the  sum  of  five  dollars  for  each  and 
every  trunk,  box,  or  bundle  of  baggage  so  neglected,  to  the  bene- 
fit of  any  person  who  will  sue  for  the  same,  in  his  own   name 


444  OF  HIGHWAYS. 

ill  an  action  in  any  court  liaving  congnizance  thereof.     (Id.  sec. 
13.)* 

Not  the  least  of  the  responsibiUties  of  stage  proprietors  are 
those  wliich  appertain  to  them  as  common  carriers  ;  by  which 
is  meant  a  person  whose  pubhc  employment  is  the  carriage  of 
goods  for  hire. 

Common  carriers  are  in  the  nature  of  iiisurers,  and  are  liable 
for  every  loss  to  property  entrusted  to  their  care,  excepting  those 
which  may  arise  from  the  act  of  God,  or  the  public  enemies.  (2 
Steph.  N.  P.  963,  964.     2  Kent's  Com.  597.) 

There  is  an  implied  undertaking  on  the  part  of  the  carrier, 
safely  to  convey  the  goods,  and  on  the  part  of  the  owner  to  com- 
pensate him  ;  and  no  special  agreement  need  be  proved  to  ena- 
ble the  owner  to  maintain  an  action  against  the  carrier,  for  a 
breach  of  duty.     (3  Wend.  161.) 

The  carrier's  responsibilty  commences  as  soon  as  there  has 
been  a  delivery  to  him,  either  actual  or  constructive  ;  continues 
so  long  as  the  goods  remain  under  his  supervision  and  control ; 
and  ceases  when  they  have  arrived  at  their  place  of  destination, 
or  when  the  owner,  by  any  act  or  direction  has  waived  a  deliv- 
ery at  such  a  place.     (4  Leigh's  N.  P.  513.) 

The  carrier  will  be  excused  from  his  liability,  where  the  loss 
arises  from  the  bailor's  own  negligence,  as  in  packing  or  putting 
up  his  goods  ;  or  in  carelessly  securing  them  in  any  way  ;  or 
when  he  insists  upon  sending  them,  although  the  carrier  may 
not  at  the  time  be  able  to  provide  a  safe  conveyance.  (11  Pick. 
R.  41.) 

As  a  general  rule,  the  owner  is  not  bound  to  state  the  value  of  a 
package,  unless  he  is  asked ;  and  if  the  package  be  very  valuable 
and  is  lost,  the  carrier  will  be  liable,  although  he  knew  not  the 
contents,  unless  he  made  a  special  acceptance,  or  the  value  was 
fraudulently  concealed  from  him.     (8  Pick.  R.  182.) 

Common  carriers  transporting  passengers  and  their  baggage, 
arc  liable  for  the  loss  of  the  baggage,  althongh  no  distinct  sum 
is  agrf;od  upon  for  conveying  it.  Rut  the  baggage  must  be  no- 
thing more  valuable  than  is  ordinarily  used  in  traveling.  If, 
therefore,  one  were  to  place  a  large  amount  of  money  in  his 


•  As  Justices'  CourtH  have  jiiriHtliction  in  actions  for  penalties  grivcn  by  statute 
to  the  ainouat  of  one  hundred  doliarB,  bucIi  HuitH  will  generally  bo  brought  in  these 
courts. 


OF  HIGHWAYS.  445 

trunk,  together  with  his  clothing,  the  carrier  could  only  be  made 
liable  for  the  trunk  and  clothing,  and  so  much  of  the  money  as 
would  ordinarily  answer  for  traveling  expenses.  (2  Wend.  Rep. 
237.     9  Id.  85.) 

Owners  of  public  conveyances  sometimes  give  notice  that  "  all 
baggage  must  he  at  the  risk  of  the  owners.''^  Such  notice  is, 
however,  insufficient  to  excuse  the  owner  of  the  conveyance 
from  liability.     (19  Wend.  R.  234.     Id.  251.) 

As  to  accidents  which  may  happen  to  passejigers,  it  may  be 
stated  that  the  carrier  of  passengers  does  not  assume  all  of  the 
responsibilities  of  the  carrier  of  goods,  so  far  as  the  passengers 
themselves  are  concerned  ;  he  does  not  ivarrant  their  safety, 
and  is  only  liable  for  injuries  arising  from  negligence  or  want  of 
skill,  and  not  for  casualties  which  could  not  be  foreseen  or 
guarded  against.     (Chitty  on  Con.  485.     Story  on  Bailm.  379.) 

It  is  the  duty  of  a  stage  proprietor  to  furnish  strong  coaches, 
gentle  and  well  broken  horses,  sound  and  strong  harness,  and 
careful  and  expert  drivers  ;  and  the  proprietor  will  be  liable  for 
any  damage  to  a  passenger  arising  from  a  defect  or  omission  in 
any  of  these  particulars.  He  will  be  liable  for  a  damage  arising 
from  a  slight  fault  or  negligence  in  such  preparations,  or  for  the 
least  degree  of  negligence  on  the  part  of  the  driver.  (9  Bing. 
R.  457.)^ 


CHAPTER    XIX. 

OP  justices',  and  other  inferior  courts  in  cities. 

I  SHALL  treat  the  subjects  of  this  chapter  under  the  following 
heads : 

1.  Organization  of  the  New  York  Marine  Court. 

2.  Jurisdiction  of  the  Marine  Conrt. 

3.  Fees  allowed  in  Actions  aiid  Proceedings  in  the  Marine 

Court. 

4.  Naturalization  of  Foreigners. 

5.  Pleadings  in  the   Marine   Court,   and  Appeal  from  a 

Judgment  therein. 

6.  The  Justices^  Courts  in  the  City  of  New  York. 

7.  Of  Jurors  in  the  City  of  Neiv  York. 

8.  Justices^  Courts  in  the  City  of  Brooklyn. 

9.  The  Justices''  Court  of  the  City  of  Albany. 

10.  The  Justices'  Court  of  the  City  of  Troy. 

11.  The  Justices'  Court  of  the  City  of  Hudson. 

12.  Application  of  the  Code  to  tlie  foregoing  subjects. 

1.   Organization  of  the  New  York  Marine  Court. 

The  Justices  of  the  Marine  Court  of  the  city  of  New  York, 
are  authorized  and  required  to  hold  a  court  in  the  said  city,  to 
be  known  by  the  name  of  the  "  Marine  Court  of  the  city  of  New 
York."     (2  R.  S.  323,  sec.  1.)* 

*  This  court  was  ori|Tinally  created  by  the  title  of  the  *'  Justices'  Court  in  and  for 
the  city  and  county  of  New  York"  By  ihe  ad.  creating  it,  it  was  provided  that 
the  governor  should,  by  and  with  the  advice  and  consent  of  tiie  council  of  appoint- 
ment, from  time  to  time,  appoint  and  commission  three  proper  and  discreet  persons 
to  bo  tlie  Justices  thereof,  who  should  liold  their  ofTices  during  the  pleasure  of  the 
council,  excepting  that  their  commissions  should  issue  once,  at  least,  in  every  three 
years.     (2  K.  L.  lHi:j,  p.  318,  sec.  lOr).) 

It  was  subscqiienliy  re-organized  by  the  title  it  now  bears, — "  The  Marine  Court 
of  the  City  of  iNew  York,"  by  an  act  passed  March  i2Glli,  181D,  with  the  same 
powers  as  forineily,  with  some  few  exceptions. 

When  Ihe  noiineil  of  uppointiiicnt  was  abolished,  it  was  provided  thiit  the  Justi- 
ces should  bo  noininiiled  by  Ihe  governor,  and  ii])pointed  by  him  with  the  consent 
of  the  Senate,  and  should  iiold  their  oHiccs  for  five  years.  (1  R.  S.  1 10,  sees.  15,  16.) 


OF  JUSTICES',  AND  OTHER  INFERIOR  COURTS,  &c.  447 

The  statute  provides  that  the  Marine  Court  shall  have  two 
Judges.     (Laws  1849,  ch.  144.) 

The  Judges  of  the  Marine  Court  are  elected  by  the  electors 
of  tlie  city  and  county  of  New  York,  once  in  every  four  years, 
at  the  annual  charter  election.  It  is  provided  that  they  shall  be 
voted  for  on  the  same  ballot ;  that  such  ballot  shall  be  separate 
and  distinct  from  any  other  ballot  voted  at  the  same  election  : 
shall  be  designated  on  the  inside,  "  For  Justices  of  the  Marine 
Court,"  and  be  deposited  in  a  separate  box  to  be  designated  "  Ma- 
rine Court ;"  but  that  the  omission  of  either  such  designation  or 
endorsement  shall  not  vitiate  any  ballot,  provided  the  same  be 
found  in  a  separate  box.  The  votes  must  be  canvassed  and 
certified  in  the  same  manner  as  the  votes  for  register  and  clerk 
of  the  city  and  county  of  New  York,  are  canvassed  and  certi- 
fied, and  a  certificate  thereof,  be  filed  with  the  secretary  of  state. 
(Id.) 

It  is  enacted  that  a  clerk  of  the  Marine  Court  shall  be  ap- 
pointed by  the  supervisors  of  the  city  and  county  of  New  York, 
to  hold  his  office  for  four  years  from  the  second  Tuesday  in 
May,  unless  sooner  removed  for  cause.     (Id.  sec.  4.) 

In  case  of  the  death,  resignation,  or  vacancy  arising  from  any 
other  cause,  of  either  of  the  Judges  or  the  clerk,  the  board  of  su- 
pervisors of  the  city  are  required  immediately  to  appoint  some 
suitable  person  to  fill  the  residue  of  the  term  thus  vacant.  (Id. 
sec.  3.) 

The  Judges  and  clerk  each  receive  an  annual  compensation, 
which  is  fixed  by  the  common  council  of  the  city  of  New  York, 
and  which  cannot  be  increased  or  diminished  during  their  con- 
tinuance in  office,  and  which  is  in  lieu  of  all  fees  and  other  per- 
quisites. The  compensation,  of  the  clerk  is  in  full  satisfaction 
of  all  assistance  which  it  may  be  necessary  for  him  to  have  in 
the  discharge  of  the  duties  of  his  office.     (Laws  1849,  sec.  6.) 

Each  of  the  Judges  and  clerk  are  required,  on  the  first  day 
of  every  month,  or  within  three  days  thereafter,  to  account 
under  oath,  for  all  fees  and  perquisites,  if  any,  of  every  kind 
and  description,  received  by  him  by  virtue  of  his  office,  directly 
or  indirectly  ;  and  pay  the  same  into  tlio  treasury  of  the  city  of 
New  York  ;  and  upon  such  return  being  made,  the  Judge  or 
Clerk  making  the  same,  will  be  entitled  to  receive  his  compen- 
sation for  the  period  included  in  such  return  at  the  rate  fixed. 
No  Judge  or  clerk  can  perform  any  service  for  which  a  fee  is 


448  OF  JUSTICES',  AND  OTHER 

allowed  by  law,  until  such  fee  is  paid  for  the  use  of  the  city. 
(Id.  sec,  5.) 

It  is  provided,  that  the  Marine  Court  shall  be  open  every  day 
at  seasonable  hours,  except  Sundays,  the  fourth  day  of  July, 
the  twenty-fifth  day  of  November,  the  twenty-fifth  day  of  De- 
cember, and  the  first  day  of  January,  in  every  year.  (Laws  of 
1819.) 

The  clerk  of  the  court  must  cause  to  be  entered  or  registered, 
in  the  proper  book  to  be  kept  for  that  purpose,  a  docket  or  regis- 
ter of  all  summonses,  warrants,  precepts,  executions,  and  pro- 
cess, which  may  be  issued  by  the  court,  and  of  the  returns  to 
all  such  summonses,  warrants,  precepts,  executions,  and  pro- 
cess ;  and  also  proper  entries  of  all  acts,  orders,  dismissions, 
decrees,  judgments,  adjournments  and  proceedings  of  the  said 
court;  and  also  the  substance  of  the  plaintiff's  charge  or  de- 
mand, and  of  the  defendant's  plea.     (Id.) 

All  applications  for  process,  for  the  recovery  of  any  debt  or 
demand,  to  be  sued  for  in  the  said  court,  must  be  made  to  the 
clerk  of  the  court,  and  not  otherwise  ;  and  all  process  to  be 
issued  out  of  the  said  court,  must  be  tested  in  the  name  of  the 
Justices,  and  be  signed  by  the  clerk  of  the  court  with  his  name, 
and  with  the  words  "  By  the  court,"  and  sealed  with  the  seal 
of  the  court.     (Id.  sec.  111.) 

Any  constable  of  the  city  of  New  York  is  empowered  to 
execute  process  issued  out  of  the  Marine  Court,  in  any  part  of 
the  city  ;  but  no  person  can  be  proceeded  against  by  summons 
to  be  issued  out  of  the  said  court,  who  shall  not  reside  within 
the  said  city.     (Laws  of  1819,  sec.  114.) 

Each  Judge  is  required  to  perform  his  equal  share  of  the 
labors  and  duties  of  the  office,  so  that  at  ten  o'clock  in  the 
morning  of  each  day,  (except  Sundays,  the  usual  holidays,  and 
the  other  days  upon  which  the  inhabitants  of  the  city  may 
generally  refrain  from  business,)  the  Judges  shall  be  in  attend- 
ance, who  must  remain  until  the  calendar  for  the  day  causes 
set  down  for  trial  are  disposed  of,  or  such  time  as  may  be  rea- 
sonable, and  one  Judge  until  four  o'clock  in  the  afternoon.  No 
Judge  while  at  the  rooms  of  the  court,  not  actually  engaged  in 
the  discliarge  of  other  duties  of  his  office,  can  refuse  to  consider 
and  act  upon  any  application  for  his  official  action,  which  may 
properly  be  made  to  him.     (Laws  of  1849,  sec.  8.) 

Either  of  tiic  Judges  may,  at  any  time  when  the  court  shall 


INFERIOR  COURTS  IN  CITIES.  449 

not  be  sitting,  take  the  confession  of  the  defendant  in  any  suit 
or  action  commenced  by  warrant  issued  out  of  the  said  court, 
and  enter  judgment  and  grant  execution  thereon,  in  the  same 
manner  as  if  the  same  was  done  in  open  court ;  and  the  Judge 
before  whom  such  proceedings  shall  be  had,  must  enter,  or 
cause  to  be  entered,  in  the  proper  book  or  books  of  the  court, 
the  substance  of  the  said  proceedings,  together  with  a  note  or 
memorandum  purporting  that  the  same  were  had  out  of  court ; 
also,  the  time  when,  and  the  name  of  the  Judge  before  whom 
the  same  were  had.     (Laws  of  1819,  sec.  121.) 

The  registers  and  books  of  entries  for  the  Marine  Court,  or 
copies  thereof  proved,  are  deemed  legal  evidence  of  the  acts 
and  proceedings  of  the  court.     (Id.  sec.  138.) 

The  Judges  of  the  Marine  Court,  jointly  and  severally,  have, 
exercise,  and  enjoy,  all  the  powers  and  privileges  of  Justices  of 
the  Peace,  as  to  keeping  the  peace  in  the  city  and  county  of 
New  York,  (except  the  right  and  power  of  holding  Courts  of 
Sessions  of  the  peace ;)  and  each  of  the  said  Judges  have  the 
like  power  to  commit  offenders  and  to  take  recognizance  for 
the  appearance  of  witnesses  against  offenders,  as  any  other 
Justice  of  the  Peace  in  any  other  county  of  this  state  ;  and  all 
recognizances  taken  by  the  said  Judges,  any,  or  either  of  them, 
for  the  appearance  of  any  person  in  any  court,  shall,  together 
with  the  examination  and  evidence  taken  before  such  Judge  or 
Judges,  be  delivered  by  him  or  them,  to  the  court  in  which  the 
person  for  whose  appearance  such  recognizance  is  taken,  is  to 
appear.  Each  of  the  Judges  have  also  power  to  take  affidavits 
and  depositions  to  be  read  and  used  in  the  Supreme  Court  of 
judicature  of  this  state,  according  to  the  rules  and  practice  of 
the  said  court,  which  affidavits  have  the  same  force  and  effect 
as  if  taken  before  any  Judge  of  the  said  court,  or  any  commis- 
sioner empowered  by  law  to  take  such  affidavits,  and  are  enti- 
tled to  such  fees  therefor  as  are  allowed  by  law.  (Sess.  Laws 
of  1819,  sec.  139.) 

In  case  the  board  of  supervisors  of  the  city  and  county  of 
New  York  shall,  at  any  time,  be  satisfied  that  any  judge  of  the 
Marine  Court  has  been  guilty  of  corruption  or  gross  misconduct 
while  in  office,  or  habitually  neglects  to  perform  his  share  of  the 
duties  of  the  office,  or  becomes  incapacitated  for  the  proper  dis- 
charge of  such  duties,  the  board,  by  a  vote  of  a  majority  of  its 
members,  are  required  to  suspend  such  Justice  from  the  exer- 

29 


450  OF  JUSTICES',  AND  OTHER 

cise  of  the  duties  of  his  office,  and  direct  that  his  compensation 
cease.  The  board  of  supervisors  must  thereupon,  without  de- 
lay, present  a  statement  of  the  causes  of  its  action  to  the  Supe- 
rior Court  of  the  city  of  New  York,  and  have  a  copy  tliereof 
served  upon  the  judge  affected  thereby.  The  Superior  Court  is 
required  to  appoint  as  early  a  day  as  may  be  practicable  for 
hearing  the  matter,  notice  of  which  day  must  be  served  upon 
such  judge,  and  proceed,  with  all  reasonable  dispatch,  to  hear 
the  parties  and  the  testimony  they  may  offer ;  and  must  there- 
upon make  such  order  conformably  to  law,  equity  and  good 
morals — either  restoring  such  judge  to  the  full  enjoyment  of  his 
office,  with  all  its  powers,  duties  and  benefits,  or  removing  him 
therefrom,  as  the  facts  proved  may  seem  to  require,  assigning 
the  causes  for  any  removal  in  the  order  therefor.  (Laws,  1849, 
sec.  10.) 

The  judges  of  the  Marine  Court  have  power  to  suspend  the 
clerk  for  corruption  or  gross  misconduct  while  in  office,  improper 
behavior  to  the  court,  neglect  of  the  duties  of  his  office,  or  inca- 
pacity to  perform  the  same,  and  also  to  designate  a  person  to  act 
as  clerk,  until  the  matter  is  inquired  into  and  decided.  The 
judges  must  immediately  present  a  statement  of  the  causes  of 
their  action  to  the  Superior  Court  of  the  city  of  New  York,  and 
the  said  court  are  required  to  proceed  thereupon  in  the  same 
manner  as  in  relation  to  a  judge  under  suspension,.  If  an  order 
is  made  for  the  removal  of  trie  clerk,  the  mayor  of  the  city  must 
designate  a  person  to  act  as  clerk  until  the  vacancy  in  the  office 
is  filled.     (Laws  1849,  sec.  10.) 

2.  Jurisdiction  of  the  Marine  Court. 

The  jurisdiction  of  this  court  divides  itself  into  two  branches. 
1.  Its  civil — and,  2.  Its  marine  jurisdiction. 

1.   Civil  Jurisdiction. 

Tlie  Marine  Court  has  civil  jurisdiction  in  the  following 
cases  : — (Code,  sees.  65,  53.) 

1.  In  an  action  arising  on  contract  for  the  recovery  of  money 
only,  if  tlie  sum  claimed  do  not  exceed  one  hundred  dollars. 

2.  In  an  action  for  damages  for  an  injury  to  the  person,  or  to 
real  properly,  or  for  taking,  detaining^  or  injuring  personal  pro- 


INFERIOR  COURTS  IN  CITIES.  451 

perty,  if  the  damages  claimed  do  not  exceed  one  hundred  dol- 
lars. 

3.  An  action  for  a  penalty  given  by  statute,  not  exceeding  one 
hundred  dollars. 

4.  An  action  commenced  by  attachment  of  property,  as  pro- 
vided by  statute,  if  the  debt  or  damages  claimed  do  not  exceed 
one  hundred  dollars. 

5.  An  action  upon  a  bond,  conditioned  for  the  payment  of 
money,  not  exceeding  one  hundred  dollars,  though  the  penalty 
exceed  that  sum  ;  the  judgment  to  be  given  for  the  sum  actually 
due.  Where  the  payments  are  to  be  made  by  instalments,  an 
action  may  be  brought  for  each  Instalment  as  it  becomes  due. 

6.  An  action  upon  a  sm-ety  bond,  though  the  penalty  or 
amount  claimed  exceed  one  hundred  dollars. 

7.  An  action  on  a  judgment  rendered  in  a  court  of  a  Justice 
of  the  Peace,  or  of  a  Justices'  or  other  inferior  court  in  a  city. 

8.  To  take  and  enter  judgment  on  the  confession  of  a  defend- 
ant, where  the  amount  confessed  shall  not  exceed  two  hundred 
and  fifty  dollars. 

9.  In  an  action  upon  the  charter  or  a  by-law  of  the  corpora- 
tion of  the  city  of  New  York,  where  the  penalty  or  forfeiture 
shall  exceed  two  hundred  and  fifty  dollars. 

The  Marine  Court  has  not  cognizance  of  a  civil  action  in  the 
following  cases  : — (Code,  sees.  65,  54.) 

1.  In  an  action  in  which  the  people  of  this  state  are  a  party, 
excepting  for  penalties  not  exceeding  one  hundred  dollars. 

2.  Nor  where  the  title  to  real  property  shall  come  in  question, 
as  provided  by  sections  55  to  62  of  the  Code,  both  inclusive. 

3.  Nor  of  a  civil  action  for  an  assault,  battery,  false  imprison- 
ment, libel,  slander,  malicious  prosecution,  criminal  conversa- 
tion, or  seduction. 

4.  Nor  of  a  matter  of  account,  where  the  sum  total  of  ths  ac- 
counts of  both  parties,  proved  to  the  satisfaction  of  the  court, 
shall  exceed  four  hundred  dollars. 

5.  Nor  of  an  action  against  an  executor  or  administrator  as 
such. 

2.  Marine  Jurisdiction. 

This  extends  :  (Code,  sec.  65.) 

1.  To  an  action  between  a  person  belonging  to  a  vessel  in  the 
merchant  service,  and  the  owner,  master,  or  commander  thereof. 


452  OF  JUSTICES',  AND  OTHER 

demanding  compensation  for  the  performance,  or  damages  for 
the  violation  of  a  contract  for  services  on  board  such  vessel  du- 
ring a  voyage  performed,  in  whole  or  in  part,  or  intended  to  be 
performed  by  such  vessel,  though  the  sum  demanded  exceed 
one  hundred  dollars. 

2.  In  an  action  by  or  against  any  person  belonging  to,  or  on 
board  of  a  vessel  in  the  merchant  service,  for  an  assault  and 
battery  or  false  imprisonment,  committed  on  board  such  vessel 
upon  the  high  seas,  or  in  a  place  without  the  United  States,  of 
which  the  ordinary  courts  of  law  of  the  state  have  jurisdiction, 
though  the  damages  demanded,  exceed  one  hundred  dollars. 
But  this  court  has  no  power  to  proceed  in  any  case,  as  a  court  of 
admiralty,  or  maritime  jurisdiction. 

It  will  be  perceived  that  the  right  to  sue  for  wages  earned  on 
shipboard,  though  founded  either  on  shipping  articles,  which 
are  never  of  a  higher  nature  than  a  simple  contract,  or  on  an 
implied  promise,  is  placed  upon  the  footing  of  a  marine  contract ; 
and  that  in  such  a  case  this  court  has  jurisdiction,  whatever  may 
be  the  amount  claimed. 

It  will  be  seen,  also,  that  the  Marine  Court  has  jurisdiction  of 
cases  of  assault  and  battery  and  false  imprisormient,  though  the 
damages  demanded  exceed  one  hundred  dollars.  The  assault 
and  battery  or  false  imprisonment  mast,  however,  have  been 
committed  on  board  of  a  vessel  in  the  merchant  service,  by  or 
against  some  person  belonging  to,  or  on  board  such  vessel,  upon 
the  high  seas,  or  in  a  place  without  the  United  iStates,  of  which 
the  ordinary  courts  of  law  of  this  state  have  jurisdiction. 

The  question  has  sometimes  arisen  how  far  the  Marine  Court 
has  jurisdiction  over  actions  of  tort  between  foreigners,  connnit- 
ted  on  board  a  foreign  vessel.  It  seems  it  has  jurisdiction  in 
such  cases,  where  it  appears  that,  as  between  the  parties,  the 
voyage  is  broken  up,  and  the  relation  of  seaman  and  master  has 
ceased  to  exist.  (1  Cow.  543.)  Not  so,  however,  where  both 
the  parties,  being  subjects  or  citizens  of  the  country  to  which 
the  vessel  belongs,  will  have  an  opportimity  to  seek  redress  in 
the  courts  of  their  own  country.     (14  John.  134.) 

3.  I'^ccif  allowed  in  actions  and  proceedings  in  the  Marine 

Court. 

The  (ollowiiig  fees  are  all()W(!d  in  actions  and  proceedings  in 
this  court :  (Laws  1849.) 


INFERIOR  COURTS  IN  CITIES.  453 

For  the  first  process  against  defendants,  thirty-seven  and  a 
half  cents  ;  for  every  subsequent  process,  twenty-five  cents  ;  to 
be  paid  upon  the  issuing  thereof. 

For  entering  every  action  or  other  proceeding,  fifty  cents,  to 
be  paid  previous  to  the  entry  of  the  return  of  the  first  process. 

For  entering  every  complaint,  demurrer,  answer,  or  reply,  ta- 
king verification,  if  necessary,  and  filing  same,  twenty-five 
cents,  to  be  paid  by  the  party  making  the  same  ;  and  for  each 
time  any  pleading  may  be  amended,  twelve  and  a  half  cents,  to 
be  paid  without  recovery,  by  the  party  amending. 

For  the  first  jury  process,  one  dollar,  to  be  paid  by  the  party 
demanding  a  jury  at  the  time  of  the  demand,  and  for  each  time 
a  new  jury  may  be  rendered  necessary  by  adjournment,  an  ad- 
ditional fee  of  twenty-five  cents,  to  be  paid  without  recovery,  by 
the  party  desiring  the  adjournment.  If  either  party  refuse  at 
any  time,  to  pay  the  requisite  jury  fee,  they  will  be  deemed 
thereby,  to  waive  a  trial  by  jury. 

For  each  adjournment,  twenty-five  cents,  to  be  paid  without 
recovery  by  the  party  desiring  the  same. 

For  taking  security,  including  affidavits  of  justification,  twenty- 
five  cents,  to  be  paid  by  the  party  required  to  give  the  same. 

For  every  subpoena,  including  blank  copies,  twenty-five  cents, 
to  be  paid  upon  the  issuing  thereof. 

For  entering  and  filing  the  papers  on  which  any  application 
may  be  made  for  an  order,  or  other  action  by  the  court,  twelve 
and  a  half  cents  to  be  paid  by  the  party  applying. 

For  trial  fee  in  every  action  in  which  the  sum  demanded  in 
the  first  process  does  not  exceed  fifty  dollars,  except  marine  ac- 
tions, one  dollar,  and  in  every  other  action  or  proceeding,  inclu- 
ding all  marine  actions,  two  dollars ;  provided  that  no  trial  fee  be 
charged  in  any  action,  in  which  there  is  no  issue  either  of  law 
or  fact.  The  trial  fee  must  be  paid,  before  the  cause  is  placed 
for  trial  upon  any  day  calendar.  If  the  issue  of  law  be  joined, 
unless  the  judgment  thereon,  be  fianl,  one  half  of  the  trial  fee, 
otherwise  provided,  must  be  paid,  without  recovery,  as  an  addi- 
tional fee.  by  the  party  against  whom  the  issue  is  decided. 

For  administering  every  oath,  except  oaths  administered  du- 
ring the  trial  of  a  cause,  and  verifications  of  pleadings,  twelve 
and  a  half  cents. 

For  final  judgment,  fifty  cents,  to  be  paid  with  the  trial  fee. 


454  OF  JUSICES',  AND  OTHER 

For  every  transcript  of  judgment,  to  file  in  any  county  clerk's 
office,  six  cents. 

For  every  writ  of  execution,  twenty  five  cents. 

For  every  commitment,  twenty-five  cents. 

For  taking  and  entering  acknowledgment  of  satisfaction  of 
judgment,  twelve  and  a  half  cents. 

For  each  search,  six  cents  a  year,  provided  that  the  whole  fee 
for  any  search  shall  not  exceed  twenty-five  cents. 

For  making  and  certifying  copies  of  papers  and  proceedings 
in  said  court,  or  before  any  Justice  thereof,  when  required,  ex- 
cept returns  upon  appeals,  ten  cents  for  each  folio  of  one  hun- 
dred words. 

It  is  provided  that  the  fees  above  specified,  shall  be  received 
for  the  use  of  the  city  of  New  York,  and  that  they  shall  not  in- 
terfere with  the  payment  or  recovery  of  fees  allowed  by  law,  to 
constables,  witnesses,  jurors  and  jailers.     (Laws  1849.) 

FEES  ALLOWED  TO  CONSTABLES   IN  THE  MARINE  COURT.  (LaWS 

1813.) 

For  serving  every  summons,  nineteen  cents. 

For  serving  every  warrant,  thirty-seven  and  a  half  cents. 

For  taking  a  bail  bond,  twenty-five  cents. 

For  returning  a  summons  or  warrant,  six  cents. 

For  summoning  a  jury,  fifty  cents. 

For  taking  the  defendant  into  custody  on  a  mittimus,  commit- 
ment, or  execution,  twelve  and  a  half  cents. 

For  conveying  a  person  to  jail,  twelve  and  a  half  cents. 

For  serving  an  execution,  twenty-five  cents  for  the  first  two 
dollars  and  fifty  cents  ;  and  at  the  rate  of  six  cents  for  every 
two  dollars  and  fifty  cents  more. 

I'or  travelling,  if  the  person  summoned  or  arrested  is  taken 
above  one  mile  from  the  place  where  the  court  is  holden,  for 
every  mile,  going  only,  twelve  and  a  half  cents. 

For  going  with  the  plaintill"  or  defendant,  to  procure  security, 
in  cases  where  it  is  ordered  by  the  court,  twenty-five  cents. 

For  notifying  defendant  to  give  security,  in  cases  where  it  is 
ordered  by  the  court,  where  the  defendant  is  not  in  court,  twelve 
and  a  half  cents. 

I'Vjr  notifying  ])Iainti[r  for  trial,  twelve  and  a  half  cents. 


INFERIOR  COURTS  IN  CITIES.  455 

For  serving  a  subpoena  on  each  witness,  twelve  and  a  half 
cents. 

It  is  provided  that  the  fee  to  be  paid  to  each  witness  in  ac- 
tions and  proceedings  in  the  Marine  Court,  or  before  any  Justice 
thereof,  shall  be  twenty-five  cents  for  each  day  he  actually  at- 
tends as  a  witness.  The  party  recovering  costs,  may  include 
therein  fees  at  that  rate,  for  each  day  every  witness  subpoenaed 
or  sworn  on  the  trial  actually  attends,  and  also  twelve  and  a 
half  cents  for  actually  serving  any  subpoena  on  a  witness,  which 
attendance  and  service  fees  must  be  proved  by  affidavit,  and 
taxed  by  the  clerk  or  Justice.  The  fee  for  one  day's  attend- 
ance, must  be  paid  or  tendered  to  each  Avitness  at  the  time  he 
is  served  with  a  subpoena,  and  any  witness  so  served  failing  to 
attend,  may  be  proceeded  against  in  the  Marine  Court,  by  the 
same  process,  and  will  be  subject  to  the  same  liability  as  is  pro- 
vided for  defaulting  witnesses  in  the  Court  of  Common  Pleas  of 
the  city  of  New  York. 

The  party  demanding  a  jury,  must  pay  for  jurors'  fees,  before 
the  jury  is  sworn,  twelve  and  a  hah"  cents  for  each  juror  empan- 
nelled,  which  fees  must  be  included  in  any  costs  such  party  may 
recover  ;  and  if  he  refuses  to  pay  such  fees,  he  will  be  deemed 
to  waive  a  trial  by  jury.  The  Marine  Court  has  power  to  ap- 
point and  deputize  any  policeman  detailed  for  duty  at  that 
court,  to  summon  and  impannel  jurors,  provided  that  no  police- 
man receive  any  compensation  therefor,  in  addition  to  his  official 
salary.     (Laws,  1849,  sec.  13.) 

4.  Naturalization  of  Foreigners. 

The  Marine  Court  is  declared,  by  the  statute  creating  it,  to  be 
a  court  of  record.  (2  R.  S.  1813,  p.  390,  sec.  134.)  It  has,  how- 
ever, none  of  the  attributes  of  courts  of  record  ;  and  its  powers 
and  forms  of  proceeding  are  all  inferior  and  limited.  Yet,  it 
exercises  one  of  the  prerogatives  of  courts  of  record  to  a  greater 
extent  than  any  other  tribunal  in  the  state,  to  wit :  the  naturali- 
zation of  foreigners  ;  a  right  conferred  by  the  various  acts  of 
congress  relating  to  that  subject,  upon  the  courts  of  record  of  the 
various  states  throughout  the  union. 

The  terms  upon  which  any  alien,  being  a  free  white  person, 
can  be  naturalized,  are  as  follows  : 

It  is  required  that  he  declare,  on  oath,  before  a  state  court, 


456  OF  JUSTICES,'  AND  OTHER 

being  a  court  of  record,  with  a  seal  and  clerk,  and  having 
common  law  jurisdiction  ;  or  before  a  court,  or  district  court  of 
the  United  States  ;  or  before  a  clerk  of  either  of  the  said  courts  ; 
two  years  at  least  before  his  admission,  his  intention  to  be- 
come a  citizen,  and  to  renounce  his  allegiance  to  his  own  so- 
vereign. 

This  declaration  need  not  be  previously  made,  if  the  alien  re- 
sided here  before  the  18th  of  June,  1812,  and  has  since  conti- 
nued to  reside  here.  Such  residence  must  be  proved  to  the  sa- 
tisfaction of  the  court,  by  the  oath  or  affirmation  of  two  wit- 
nesses, citizens  of  the  United  States,  that  he  has  resided  for  at 
least  five  years  immediately  preceding  the  time  of  such  applica- 
tion within  the  limits,  and  under  the  jurisdiction  of  the  United 
States.  The  names  of  the  witnesses,  and  the  place  or  places 
where  the  applicant  has  resided  for  at  least  the  five  years,  must 
be  set  forth  in  the  record  of  the  court.  (Act  of  Congress,  May 
24,  1828,  ch.  116.) 

If  the  applicant  shall  have  been  a  minor,  under  twenty-one 
yetxYS  of  age,  and  shall  have  resided  in  the  United  States  three 
years  next  preceding  his  arrival  to  majority,  he  may  also  be  ad- 
mitted a  citizen,  without  such  previous  declaration  ;  provided 
he  has  arrived  at  the  age  of  twenty-one  years,  and  shall  have 
resided  five  years  within  the  United  States,  including  the  three 
years  of  his  minority,  and  make  the  declaration  aforesaid,  at  the 
time  of  his  admission,  and  declare,  on  oath,  and  prove,  to  the 
satisfaction  of  the  court,  that,  for  three  years  next  preceding,  it 
had  been  his  bona  fide  intention  to  become  a  citizen,  and  in  all 
other  respects  comply  with  the  laws  in  regard  to  naturalization. 
(Act  of  Congress,  May  26,  1824,  ch.  186.) 

In  all  other  cases,  the  previous  declaration  is  requisite.  At 
the  time  of  his  admission,  his  country  must  be  at  peace  with  the 
United  States,  and  he  must  take  an  oath  before  one  of  the  courts 
above  mentioned,  to  support  the  constitution  of  the  United 
States,  and  likewise,  on  oath,  renounce  and  adjure  his  native 
allegiance,  lie  must,  at  the  time  of  his  admission,  satisfy  the 
court,  by  other  proof  than  his  own  oath,  that  he  has  resided  five 
years,  at  least,  within  the  United  States,  and  one  year,  at  least, 
within  the  state  where  the  court  is  held  ;  and,  if  he  shall  have 
arrived  after  the  peace  of  1815,  his  residence  must  have  been 
continued  for  five  years  next  preceding  his  admission,  without 
being,  at  any  time  during  the  said  five  years,  out  of  the  territory 


INFERIOR  COURTS  IN  CITIES.  457 

of  the  United  States.  He  must  satisfy  the  court  that,  during 
that  time,  he  has  behaved  as  a  man  of  good  moral  character,  at- 
tached to  the  principles  of  the  constitution  of  the  United  States, 
and  well  disposed  to  the  good  order  and  happiness  of  the 
same.  He  must,  at  the  same  time,  renounce  any  title  or  or- 
der of  nobility,  if  he  has  any.  (Act  of  Congress,  1828,  ch. 
106.) 

The  children  of  persons  duly  naturalized,  being  minors  at 
that  lime,  shall,  if  dwelling  in  the  United  States,  be  deemed  ci- 
tizens. If  any  alien  shall  die  after  his  declaration,  and  before 
actual  admission  as  a  citizen,  his  widow  and  children  shall  be 
deemed  citizens.  (2  Kent  Com.  65.  Act  of  Congress,  March 
26,  1804,  ch.  47.) 

A  person  thus  naturalized,  becomes  entitled  to  all  the  privile- 
ges and  immunities  of  natural  born  subjects,  except  that  a  resi- 
dence of  seven  years  is  requisite  to  enable  him  to  hold  a  seat  in 
congress,  and  no  person  except  a  natural  born  citizen  is  eligible  to 
the  office  of  president  of  the  United  States.     (2  Kent  Com.  65.) 

FORM    OF  DECLARATION    OF  INTENTION  TO  BECOME  A  CITIZEN. 

I,  Michael  O'Donohue,  do  declare,  on  oath,  that  it  is  hojiajide 
my  intention  to  become  a  citizen  of  the  United  States,  and  to 
renounce  forever,  all  allegiance  and  fidelity,  to  all  and  any  fo- 
reign prince,  potentate,  state,  and  sovereignty  whatever  ;  and 
particularly  to  Victoria,  Q,ueen  of  the  United  Kingdom  of  Great 
Britain  and  Ireland. 

Michael  O'Donohue. 
Sworn  in  open  court,  this  1st  day 
of  June,  1847,  before  me, 

Ezra  Wetmore,  Clerk. 

certificate  op   clerk. 

I,  Ezra  Wetmore,  clerk  of  the  Marine  Court  of  the  city  of 
New  York,  do  certify,  that  the  foregoing  is  a  true  copy  of  the 
original  declaration  of  intention  of  Michael  O'Donohue,  to  be- 
come a  citizen  of  the  United  States,  remaining  of  record  in  my 
office. 

In  testimony  whereof,  I  have  hereunto  subscribed  my  name, 
and  affixed  the  seal  of  the  said  court,  this  1st  day  of  June? 
1849. 

Ezra  Wetmore,  Clerk. 

[L.  S.] 


458  OF  JUSTICES,'  AND  OTHER 

DECLARATION    OF    INTENTION    TO    BECOME    A    CITIZEN,    FOR 
THREE    YEARS    PAST- 

r,  Dennis  O'Flaherty,  do  declare,  on  oath,  that  it  is  bona  fide 
my  intention,  and  has  been,  for  the  last  three  years,  to  become  a 
citizen  of  the  United  States,  and  to  renounce  for  ever  all  alle- 
giance and  fidelity  to  all  and  every  foreign  prince,  potentate, 
state,  and  sovereignty  whatever,  and  particularly  to  Victoria, 
Q,ueen  of  the  United  Kingdom  of  Great  Britain  and  Ireland. 

Dennis  O'Flaherty. 
Sworn  in  open  conrt,  this  1st  day 
of  June,  1849,  before  me, 

Ezra  Wetmore,  Clerk  of  the 
Marine  Court. 

CERTIFICATE    OF    CITIZENSHIP. 

Be  it  remembered,  that  on  the  1st  day  of  June,  1849,  Michael 
O'Donohne,  late  of  Dublin,  Ireland,  at  present  of  the  city  of  New 
York,  appeared  in  the  Marine  Court  of  the  city  of  New  York, 
and  applied  to  the  said  court  to  be  admitted  to  become  a  citi- 
zen of  the  United  States  of  America,  pursuant  to  the  directions 
of  the  several  acts  of  congress  in  relation  thereto. 

And  the  said  Michael  O'Donohue  having  thereupon  produced 
to  the  court  such  evidence,  made  such  declaration  and  renun- 
ciation, and  taken  such  oath,  as  are,  by  the  said  acts,  re- 
quired : 

Thereupon,  it  was  ordered  by  the  said  court,  that  the  said 
Michael  O'Donohue  be  admitted,  and  he  was  accordingly  admit- 
ted, by  the  said  court,  to  be  a  citizen  of  the  United  States  of 
America. 

In  testimony  whereof,  the  seal  of  the  said  court  is  hereunto 
affixed,  this  1st  day  of  June,  1849,  and  in  the  year  of  our  inde- 
pendence the  73d. 

[l.  S.J  By  the  Court, 

I'iZRA  Wetmore,  Clerk. 

5.  Pleadings  in  the  Marine  Court,  and  Appeal  from  a  Judg- 
ment therein. 

The  pleadings  in  this  court,  may  be  cither  oral  or  written  ; 


INFERIOR  COURTS  IN  CITIES.  459 

and  its  regulations  and  proceedings  are  similar  to  those  of  a 
Justices'  Court. 

An  appeal  from  the  judgment  of  the  Marine  Court,  must  be, 
to  the  Court  of  Common  Pleas  of  the  city  of  New  York.  (Code, 
sec.  302.) 

6.  The  Justicea^  Courts  in  the  City  of  Neio  York. 

The  city  of  New  York  is  divided  into  six  judicial  districts, 
in  each  of  which  there  is  a  Justice's  Court.  (Laws,  1848,  ch. 
153,  sec.  1.) 

The  first,  second,  third,  and  fifth  wards  of  the  city  constitute 
the  first  judicial  district ;  the  fourth,  sixth,  and  fourteenth  wards 
the  second  judicial  district ;  the  eighth  and  ninth  wards,  the 
third  judicial  district ;  the  tenth,  fourteenth,  and  seventeenth 
wards,  the  fourth  judicial  district ;  the  seventh,  eleventh,  and 
thirteenth  wards,  the  fifth  judicial  district ;  and  the  twelfth, 
sixteenth,  and  eighteenth  wards,  the  sixth  judicial  district.  (Id. 
sec.  2.) 

In  each  of  the  foregoing  districts,  a  Justice  must  be  elected, 
at  the  annual  charter  election  of  the  city.  The  election  takes 
place  once  in  every  four  years.  The  Justices  enter  on  their  du- 
ties on  the  second  Tuesday  of  May,  after  their  election,  and 
hold  their  respective  offices  four  years.     (Sees.  2  and  5.) 

They  receive,  for  their  services,  such  an  annual  compensa- 
tion as  is  fixed  by  the  common  council  of  the  city,  which  com- 
pensation is  in  lieu  of  all  fees  or  other  perquisites ;  it  cannot  be 
increased  or  diminished  during  their  continuance  in  office,  and 
they  can  receive  no  other  fees  or  perquisites  whatever,  by  virtue 
of  their  offices.     (Sec.  4.) 

Each  of  the  Justice's  Courts,  in  New  York,  has  a  clerk,  who  is 
appointed  by  the  common  council  of  the  city.  The  compensa- 
tion of  the  clerk  is  fixed  by  the  common  council,  and  he  holds 
his  office  for  four  years.  (Sec.  3.)  The  clerks  must  make  out 
and  sign  all  process,  and  cause  to  be  entered,  in  proper  books  to 
be  kept  for  that  purpose,  a  docket  or  register  of  the  returns  of 
the  same,  and  also,  proper  entries  of  the  proceedings  before  the 
Justices  to  whom  they  shall  be  respectively  appointed  clerk. 
(Laws,  1820.)  They  may  administer  all  oaths  necessary  for  the 
issuing  of  any  process  or  landlord's  warrants  ;  but  in  case  of 
sickness  or  absence  of  any  clerk,  the  Justice  has  power  to  issue 


460  OF  JUSTICES,'  AND  OTHER 

any  process  to  be  issued  out  of  his  court,  and  sign  the  name  of 
the  clerk  thereto.     (Sess.  Laws,  1837.) 

The  Justice  or  clerks  of  these  courts  are  required,  on  the  first 
day  of  every  month,  or  within  three  days  thereafter,  to  account, 
under  oath,  for  all  fees  and  perquisites,  if  any,  of  every  kind  and 
description,  received  by  them,  by  virtue  of  their  offices,  directly 
or  indirectly,  and  pay  the  same  into  the  treasury  of  the  city  of 
New  York ;  and  no  Justice  or  clerk  is  permitted  to  perform  any 
service  for  which  a  fee  is  allowed  by  law,  until  such  fee  is  paid 
for  the  use  of  the  city.     (Laws,  1848,  ch.  153,  sec.  9.) 

Actions  brought  before  any  of  the  Justices  must  be  com- 
menced and  prosecuted  before  the  Justice  either  in  the  district 
in  which  the  plaintiff  or  plaintiffs  reside,  or  in  the  district  in 
which  the  defendant  or  defendants,  or  one  of  them  resides. 
(Laws  1820.) 

No  suit  brought,  or  action  commenced  in  any  of  the-  Justices' 
Courts,  will  abate  or  be  discontinued,  by  reason  of  the  absence 
of  the  Justice  from  the  usual  place  of  holding  the  court,  on  the 
return  day  of  any  process  or  upon  the  day  to  which  any  cause 
or  proceeding  shall  have  been  adjourned ;  but  the  clerk  of  the 
court  has  power  to  adjourn  such  cause  to  such  time  as  the  Jus- 
tice shall  be  in  attendance  upon  the  court.  The  adjournment 
made  by  the  clerk  must  not,  however,  at  any  one  time,  exceed 
six  days,  without  the  mutual  consent  of  the  parties  to  the  suit. 
(Sess.  Laws,  1840.) 

Whenever  the  Court  of  Common  Pleas  orders  a  new  trial  in 
any  case,  brought  before  it  from  any  of  the  Justices'  Courts,  or 
from  the  Marine  Court,  it  is  the  duty  of  the  Marine  Court  or  of 
the  Justices'  Court,  as  the  case  may  be,  to  proceed  and  try  the 
same,  upon  the  issue  joined  therein ;  and  for  that  purpose,  such 
court  has  power,  on  the  application  of  cither  party  to  the  suit, 
to  issue  a  summons,  directed  to  the  other  of  the  said  parties  in 
the  cause,  to  appear  on  a  day  and  at  a  place,  for  such  new  trial 
to  be  specified  in  the  summons,  which  day  must  not  be  less 
than  six  days  from  the  service  of  the  summons.  (Sess.  Laws, 
1844.) 

At  the  time  ;ind  ])lace  specified  in  the  summons,  the  Justices' 
Court  or  the  Marine  Court,  as  the  same  may  be,  nuist  proceed 
to  try  and  determine  the  issue  joined  in  such  suit,  in  the  same 
manner  as  if  there  had  becMi  no  previous  trial.     (Id.) 

Whenever  the  Court  of  Common  Pleas  orders  a  new  trial  in 


INFERIOR  COURTS  IN  CITIES.  461 

such  cause,  it  has  power  to  make  such  order  relative  to  the 
costs,  as  it  may  deem  just.     (Laws  1844.) 

If  the  Justice  who  rendered  judgment  in  any  cause,  be  not  in 
office,  his  successor  may  issue  or  renew  an  execution.  Such 
execution  must  state  the  name  of  the  Justice  by  whom  the 
judgment  was  rendered  ;  be  tested  in  the  name  of  the  Justice 
in  office  at  the  time  of  issuing  the  same  ;  be  dated  on  the  day 
when  issued ;  and  be  returnable  in  twenty  days  therefrom. 
(Laws  1837.) 

A  transcript  of  the  process,  pleadings  and  judgment,  had  be- 
fore any  of  the  said  Justices  ;  of  the  execution  issued  thereon, 
if  any,  and  the  return  thereon,  if  any,  when  subscribed  and 
certified  by  the  Justice  or  his  clerk,  and  a  certificate  of  the  clerk 
of  the  city  and  county  of  New  York  endorsed  thereon,  or  at- 
tached thereto,  under  the  seal  of  the  Court  of  Common  Pleas, 
of  the  said  county,  certifying  that  the  person  subscribing  such 
transcript,  was  at  the  date  of  such  judgment,  such  Justice  or 
clerk,  will  be  prima  facie  evidence  in  any  Court  of  Justice  in 
this  state,  to  prove  ihe  facts  contained  in  such  transcript,  and 
no  more.     (Id.  sec.  5.) 

No  process,  suit,  judgment,  execution  or  proceeding,  had  be- 
fore either  of  the  courts  held  by  either  of  the  said  Justices,  will 
abate  or  be  discontinued  by  reason  of  the  death,  removal  from 
office,  or  vacancy  in  office  of  any  Justice,  but  the  respective 
successors  in  office  of  the  said  Justices,  must  proceed  to  hear, 
try  and  determine,  and  give  judgment  in  and  upon  the  same, 
and  upon  all  matters  and  things  pending  before,  and  undecided 
by,  their  predecessors  in  office,  with  the  same  powers,  jurisdic- 
tion and  authority,  as  their  predecessors  had.     (Id.  sec.  6.) 

The  Justices'  Courts  in  the  city  of  New  York,  have  jurisdic- 
tion in  the  following  cases  :  (Code,  sec.  66.) 

1.  In  actions  similar  to  those  in  which  Justices  of  the  Peace 
in  the  country,  have  jurisdiction. 

2.  In  an  action  upon  the  charter,  or  a  by-law  of  the  corporation 
of  the  city  of  New  York,  where  the  penalty  or  forfeiture  does 
not  exceed  one  hundred  dollars. 

An  appeal  from  a  judgment  of  the  above  courts,  lies  to  the 
Court  of  Common  Pleas. 

7.   Of  Juries  in  the  City  of  New  York. 
The  following  provision  in  relation  to  juries  in  the  city  of  New 


462  OF  JUSTICES',  AND  OTHER 

York,  were  enacted  by  the  legislature  in  1847  :  (Vide  Sess.  Laws, 
1847,  ch.  495.) 

It  is  not  necessary  as  a  qualification,  for  any  juror  in  the  city 
of  New  York,  that  he  be  actually  assessed  in  the  said  city,  but 
all  persons  residing  in  said  city  who  are  qualified  to  serve  as 
jurors,  and  not  exempted  by  any  of  the  laws  of  this  state,  must 
be  selected  as  such,  whether  they  have  been  assessed  or  not. 

It  is  enacted  that  the  said  jurors  shall  be  selected  by  a  person 
to  be  appointed  by  the  supervisors  of  said  city,  the  Judges  of  the 
Superior  Court,  and  the  Judges  of  the  Court  of  Common  Pleas 
of  said  city  and  county,  who  must  be  known  as  the  commis- 
sioner of  jurors^  and  be  authorized  to  appoint  one  or  more  as- 
sistants. 

The  commissioner  of  jurors  is  required  to  execute  a  bond  to 
the  mayor,  aldermen  and  commonalty  of  the  city,  in  the  penalty 
of  five  thousand  dollars,  with  two  sureties,  to  be  approved  by 
the  mayor,  conditioned  for  the  faithful  discharge  of  his  duties. 

The  commissioner  must  proceed  to  the  selection  of  jurors  im- 
mediately after  the  first  day  of  May  in  each  year,  and  the 
names  must  be  entered  in  a  book  alphabetically,  designating 
the  ward,  occupation  and  residence  of  each.  After  the  first 
day  of  June  in  each  year,  as  soon  as  the  list  is  completed,  the 
commissioner  must  publish  a  notice  of  at  least  ten  days,  in  the 
newspapers  in  which  the  notices  of  the  corporation  of  the  city 
of  New  York  are  printed,  that  the  petit  jury  list  is  ready  for  ex- 
amination and  correction  at  his  ofiice,  and  he  is  to  receive  evi- 
dence of  exemptions  in  the  same  manner  as  authorized  in  courts 
of  record.  The  names  of  all  persons  found  to  be  exempt  from 
serving  as  jurors,  must  be  struck  from  the  list,  and  the  ground 
of  exemption  recorded.  When  the  list  is  Ct)mpleted,  a  certified 
copy  must  be  dehvcred  to  the  county  clerk,  who  is  required  to 
prepare  the  ballots  and  deposit  them  in  the  box,  in  the  manner  now 
required  by  law.  The  commissioner  may,  in  like  manner,  at 
any  time  return  the  names  of  any  persons  omitted  on  the  list, 
if  no  suilicient  cause  be  shown  to  excuse  such  persons,  and 
their  names  must  be  deposited  in  the  box  as  jurors  for  the  resi- 
due of  the  year  that  the  other  jurors  arc  to  serve. 

It  is  (Miacled  that  the  jurors  hereafter  to  be  summoned  for  the 
several  courts  authorized  to  try  issues  of  fact  in  New  York, 
sh.ill,  on  rc(jnisition  being  made  by  such  courts  respectively, 
directed  to  the  county  clerk,  be  drawn  from  the  petit  jury  box 


INFERIOR  COURTS  IN  CITIES.  463 

in  his  office,  a  minute  of  which  drawing  must  be  certified  and 
filed  with  said  clerk,  as  now  required,  who  must  deliver  a  copy- 
thereof  to  the  officer  authorized  to  summon  such  jurors  in  the 
manner  now  required  by  law.  But  no  fine  can  be  imposed  by- 
such  courts  on  any  juror  failing  to  attend,  unless  he  shall  have 
been  duly  summoned. 

The  clerks  of  the  respective  courts  are  required  within  ten 
days  after  the  jurors  are  discharged,  to  deliver  to  the  clerk  of 
the  city  and  county  of  New  York,  a  certified  list  of  all  the 
jurors  who  were  returned  to  such  court,  and  must  specify 
therein  : 

1.  Those  who  appeared  and  served 

2.  Those  who  were  discharged  on  account  of  their  being  ex- 
empt from  serving  on  juries,  or  on  account  of  their  being  un- 
qualified ; 

3.  Those  who,  for  any  other  reason,  were  excused  from  serv- 
ing, and  those  who  made  default  in  appearing  and  serving. 
(Laws  1847.     2  R.  S.  512,  sec.  37.) 

The  county  clerk  is  required  to  return  to  the  box  from  which 
they  were  taken,  the  names  of  those  jurors  who  appear  from 
such  certified  list,  to  have  been  excused  from  serving,  or  to  have 
made  default  in  their  appearance  ;  he  must  destroy  the  ballots 
containing  the  names  of  those  who  were  discharged  on  account 
of  their  being  exempt,  or  on  account  of  their  being  unqualified  ; 
and  he  must  deposite  the  ballots  containing  the  names  of  those 
who  appeared  and  served,  in  a  separate  box,  distinct  from  that 
from  which  they  were  taken. 

The  clerks  of  the  several  courts  in  New  York,  to  which  jurors 
are  summoned,  must,  within  ten  days  after  the  expiration  of 
each  term,  or,  after  the  discharge  of  the  jurors  thus  summoned, 
make  a  return  to  the  commissioner  of  all  jurors  fined  in  their 
respective  courts,  setting  forth  the  date  when  fined,  the  amount 
of  each  fine,  and  the  residence  of  each  juror. 

The  commissioner  is  required  to  notify  each  of  the  jurors,  by 
written  or  printed  notice,  of  the  fine  imposed  upon  him,  and  re- 
quiring the  payment  thereof,  or  to  appear  before  him  on  a  day 
to  be  named  in  the  notice,  to  show  cause,  if  any  he  have,  for 
remitting  the  same. 


464  OF  JUSTICES',  AND  OTHER 


FORM    OF    NOTICE. 

To  Mr.  John  Doe  :— 

This  is  to  inform  you  that  the Court  has  imposed 

upon  you  the  fine  of for  refusal  to  serve  therein  as  a  juror 

on  the  7th  day  of  May  last,  pursuant  to  the  command  of  said 
court ;  and  that  you  are  required  to  pay  the  said  fine,  or  to  ap- 
pear before  me  on  the  10th  day  of  June  instant,  at  11  o'clock  in 
the  forenoon,  to  show  cause,  if  any  you  may  have,  for  remitting 
the  same. 

Dated  June  5th,  1849.  David  Boyd, 

Commissioner  of  Jurors. 

The  commissioner,  upon  receiving  a  legal  excuse,  must  enter 
an  order  remitting  the  whole  fine,  or  a  part  of  it. 

ORDER    OF    COMMISSIONER. 

In  the  matter  of  John  Doe,  ) 
a  defaulting  juror.  S 

Whereas,  on  the  5th  day  of  June  instant,  I  caused  a  notice  to 
be  served  upon  John  Doe,  informing  him  that,  &c.  \liere  recite 
the  notice.']  And  whereas,  the  said  John  Doe,  on  this  day,  at 
the  hour  aforesaid,  came  before  me.  and  rendered  the  following 
legal  excuse  for  his  said  default,  to  wit :  \Jiere  state  the  excuse  ;] 
It  is  therefore  ordered  and  adjudged  that  the  said  fine  [or  "  that 

the  sum  of ,  being  one-third  part  of  said  fine"]  be,  and  the 

same  is,  hereby  remitted. 

Dated  June  10th,  1849.  David  Boyd, 

Commissioner  of  Jurors. 

At  the  expiration  of  ten  days  from  the  day  appointed  for  the 
hearing  of  the  excuses  of  such  jurors,  the  commissioner  must 
issue  a  warrant,  directed  to  the  sheriff  of  the  city  and  county  of 
New  York,  commanding  him  to  collect  of  the  several  persons 
named  in  a  schedule  to  be  annexed  to  such  warrant  the  several 
sums  allixed  to  tiieir  names  respectively  in  such  schedule,  and 
pay  over  the  same  to  the  treasurer  of  the  county. 

The  schedule  must  contain  the  names  of  the  jurors  fined? 
their  respective  places  of  residence,  and  the  amount  of  fines  im- 
posed on  each. 


INFERIOR  COURTS  IN  CITIES. 


FORM    OF    "WARRANT. 


465 


City  and  County  of  New  York,  ss. 

To  the  Sheriff  of  said  City  and  County,  Greeting  : 

"Whereas,  the  persons  named  in  the  schedule  hereunto  an- 
nexed were  severally  fined  by  the Court,  on  the  7th  day 

of  May,  1849,  as  defaulting  jurors,  and  I  caused  a  written  no- 
tice of  such  fine,  requiring  the  payment  thereof,  or  an  appear- 
ance before  me  on  the  10th  day  of  June  instant,  to  show  cause, 
if  any  they  might  have,  why  the  same  ought  to  be  remitted,  to 
be  served  upon  each  of  said  defaulting  jurors  according  to  law. 
And  whereas,  none  of  the  said  jurors  either  paid  the  said  fine 
or  appeared  before  me  to  show  cause  pursuant  to  the  notice 
aforesaid  [or  whereas,  the  said  jurors,  each  for  himself,  appeared 
before  me,  pursuant  to  the  notice  aforesaid ;  but  each  and  every 
of  them  failed  to  render  any  legal  excuse  for  their  said  de- 
fault.] Now,  therefore,  you  are  hereby  commanded,  in  the  name 
of  the  people  of  the  state  of  New  York,  to  collect  of  the  several 
persons  named  in  the  schedule  hereunto  annexed  the  several 
sums  affixed  to  their  names  respectively  in  such  schedule,  by 
levy  and  sale  of  the  goods  and  chattels  of  such  persons,  and 
pay  over  the  same  to  the  treasurer  of  your  county.  And  make 
return  within  thirty  days  from  the  receipt  hereof,  accordino-  to 
law. 

Given  under  my  hand  this  21st  day  of  June,  1849. 

David  Boyd, 

Commissioners  of  Jurors. 

The  return  of  the  warrant  may  be  enforced  in  the  Supreme 
Court  in  the  same  manner  as  the  return  of  civil  process  ;  and  it 
may  be  renewed,  in  like  manner,  in  cases  where  fines  have  not 
been  paid  or  collected. 

Each  person  applied  to  by  the  commissioner  or  his  assistants 
for  information  as  to  the  liability  of  persons  to  perform  jury  duty 
in  the  city,  must  communicate  correct  information ;  and  in  case 
of  a  refusal  to  give  such  information  as  they  may  possess  on  the 
subject,  or  give  false  information,  they  will  forfeit  the  sum  of 
fifty  dollars,  to  be  prosecuted  by  the  commissioner  in  the  name 
of  the  mayor,  aldermen,  and  commonalty  of  the  city,  the  money 
to  be  paid  into  the  treasury  of  the  city. 

The  grand  or  petit  jurors  summoned  to  attend  any  court  in 

30 


466  OF  JUSTICES',  AND  OTHER 

the  city,  by  written  or  printed  notice  left  at  their  respective 
places  of  residence,  and  not  appearing  before  snch  court  pursu- 
ant to  the  summons,  must  be  ordered  by  the  court  to  show  cause 
before  tlie  conmiissioner,  on  the  first  Monday  succeeding  the  ex- 
piration of  tlie  term  of  the  court.  Tlie  jurors  must  be  sum- 
moned to  appear  before  the  commissioner,  and  the  same  pro- 
ceedings must  be  had  thereon  by  the  commissioner  as  were  hith- 
erto had  by  the  courts  in  relation  to  defaulting  jurors. 

After  the  deposit  of  the  ballots,  the  several  courts  in  the  city 
may  order  as  many  jurors  to  be  summoned  for  their  respective 
courts,  as  in  their  judgment  may  be  necessary. 

It  is  provided  that  commandants,  or  other  officers  of  uniformed 
military  companies  in  New  York,  shall  not  grant  certificates  of 
membership  to  any  person  enlisting  in  their  respective  compa- 
nies, unless  such  members  are  uniformed  and  equipped  accord- 
ing to  law,  and  intend,  in  good  faith,  to  perform  all  the  service 
required  by  law  therein  ;  and  such  commandants  are  required 
to  report  to  the  commissioner  of  jurors  whenever  any  of  the 
members  of  their  respective  companies  have  been  expelled,  or 
cease  or  neglect  to  perform  duty  therein,  or  become  liable  to 
serve  as  jurors ;  and  such  commandants  or  other  officers  are 
permitted  in  no  instance  to  grant  certificates  to  honorary  mem- 
bers, with  the  view  to  evade  the  performance  of  jury  duty.  The 
commandant  or  other  officers  of  uniform  companies  ofl'ending 
against  any  of  the  foregoing  provisions,  will  forfeit  the  sum  of 
fifty  dollars,  to  be  prosecuted  by  the  commissioner  in  the  name  of 
the  mayor,  aldermen  and  commonalty  of  the  city,  the  money  to 
be  paid  into  the  treasury  of  the  cit}^ 

The  commissioner  has  authority  to  administer  oaths  or  affirma- 
tions in  any  matter  relating  to  his  duties,  and  he  is  required  to 
keep  a  record  of  all  proceedings  had  before  him,  and  is  entitled 
to  the  same  fees  allowed  to  clerks  of  courts  of  record,  for  orders 
or  copies  thereof,  for  the  benefit  of  the  city  and  county  of  New 
York  ;  and  ihc  supervisois  of  tlie  said  city  and  county  are  re- 
quired to  allow  the  connnissioner,  out  of  such  fees  and  the  fines 
which  may  bo  collected  from  jmors,  such  reasonable  compensa- 
tion as  they  shall  dccni  just  for  the  duties  performed  by  him; 
and  the  residue  of  the  said  money  collected  from  jurors'  fines 
must  be  paid  ovtjr  and  ap[)licd,  as  now  ])i-ovided  by  law. 

Tlic  supervisors  ol"  the  city  are  rcqniicd  to  jiiovide  for  the 
payment  for  the  Ijooks,  stationery,  and  printing  of  notices  ne- 


INFERIOR  COURTS  IN  CITIES.  4G7 

cessary  to  carry  into  effect  the  provisions  of  this  act ;  and  they 
are  also  required  to  provide  a  suitable  room  and  accommoda- 
tions for  the  commissioner's  office. 

It  is  provided  that  no  fireman  of  the  city  shall  be  exempted 
from  jury  duty,  unless  he  actually  performs  all  the  duty  of  a 
fireman  in  his  company  ;  and  to  entitle  him  to  such  exemption, 
he  must  produce  a  certificate  of  the  foreman,  or  other  chief  offi- 
cer of  his  company,  that  he  is  a  faithful  and  acting  member 
thereof.  This  provision,  however,  is  not  to  affect  those  who  are 
exempt  from  serving  as  jurors  by  reason  of  having  served  as 
firemen  for  the  period  required  by  law. 

8.  Justices'  Courts  in  the  City  of  Brooklyn. 

The  Common  Council  of  the  city  of  Brooklyn  have  authority, 
from  time  to  time,  to  divide  the  city  into  two  or  more  districts. 
In  each  of  these  districts  there  must  be  elected,  every  four  years, 
at  the  charter  election,  by  the  electors  of  the  city,  a  Justice  of 
the  Peace,  to  hold  his  office  for  the  term  of  four  years,  from  the 
first  day  of  May  next  after.     (Laws  1849,  ch.  12.5,  sec.  35.) 

It  is  enacted  that  these  Justices  shall  be  deemed  Justices  of  the 
Peace  of  the  county  of  Kings.  They  have  cognizance  of  sum- 
mary proceedings  to  recover  the  possession  of  land ;  and  in  ex- 
ercising civil  jurisdiction,  they  are  entitled  to  receive  the  same 
fees,  have  the  same  powers,  and  are  subject  to  the  same  general 
laws  of  the  state,  in  relation  to  civil  causes  before  Justices,  as 
Justices  of  the  Peace  in  towns.  They  have  also  cognizance  of 
actions  upon  the  charter  or  by-laws  of  the  corporation  of  their 
city,  where  the  penalty  or  forfeiture  does  not  exceed  one  hun- 
dred dollars.     (Code,  sec.  67.) 

Appeals  from  their  judgments  may  be  made  to  the  City  Court 
of  Brooklyn  in  the  same  manner  as  appeals  from  Justices' judg- 
ments in  towns  are  made  to  county  courts.  (Laws  1849,  ch. 
135,  sec.  36.) 

In  case  the  office  of  Justice  of  the  Peace  of  the  city  becomes 
vacant  before  the  expiration  of  the  regular  term  for  which  he 
was  elected,  the  vacancy  may  be  filled  by  appointment  by  the 
Common  Council  of  the  city,  until  it  is  supplied  at  the  next 
charter  election,  when  it  must  be  filled  by  election  for  the  resi- 
due of  the  unexpired  term.     (Id.  sec.  37.) 

All  acts  and  parts  of  acts  which  relate  to  the  organization  of 


468  OF  JUSTICES',  AND  OTHER 

the  municipal  court  of  Brooklyn,  the  proceedings  therein,  and 
the  jurisdiction  and  powers  of  the  Justices  thereof,  are  repealed. 
(Id.  sec.  38.) 

9.   The  Justices'  Court  of  the  City  of  Albany. 

It  is  provided  that  there  shall  be  elected,  every  four  years,  in 
the  city  of  Albany,  at  the  election  of  the  mayor,  charter  and 
ward  officers,  held  on  the  second  Tuesday  of  April,  five  Justices 
of  the  Peace,  to  hold  their  offices  for  four  years,  and  until  their 
successors  are  duly  chosen  and  qualified.  (Laws  1848,  ch.  70, 
sec.  1.) 

Notices  of  the  election  of  the  Justices  must  be  given  in  the 
manner  as  to  the  other  officers  elected  at  the  same  time.  The 
inspectors  holding  the  election  are  required,  in  addition  to  the 
other  ballot  boxes,  to  provide  one  other  ballot  box,  which  must 
be  distinctly  marked  "  Justices  of  the  Peace."  The  ballots  for 
Justices  of  the  Peace  must  be  distinct  from  those  for  any  other 
officers  to  be  chosen  at  such  election,  and  be  distinctly  endorsed 
"  Justices  of  the  Peace."  The  votes  given  for  such  officers  must 
be  canvassed,  and  the  result  certified  and  returned  by  the  in- 
spectors, in  the  same  manner  as  for  the  other  officers  elected  at 
such  elections.  The  clerk  of  the  Common  Council  of  the  city 
is  required  to  deliver  the  returns  to  the  Common  Council  at  its 
first  meeting  after  the  election  ;  and  a  meeting  of  the  Common 
Council  for  that  purpose  must  be  held  previous  to  the  first  Tues- 
day in  May  following  the  election.  The  Common  Council  must 
thereupon  proceed  to  canvass  the  returns,  and  determine  who 
has  been  elected  Justices  of  the  Peace,  and  cause  a  written  cer- 
tificate of  their  determination,  signed  by  a  majority  of  the  mem- 
bers present,  to  be  filed  in  the  office  of  the  clerk,  and  the  deter- 
mination of  the  Common  Council  in  the  premises  will  be  final 
and  conclusive.     (Id.  sec.  2.) 

The  Common  Council  are  required,  after  the  election,  and 
canvass  and  determination  of  the  result,  and  before  the  first 
Tuesday  in  May  following  the  election,  to  select  and  designate 
three  of  the  persons  so  elected,  to  be  Justices  of  the  Justices' 
Court  of  the  city  of  Albany.  The  persons  so  selected  and 
designated,  must  ontor  upf)ii  l1io  discharge  of  the  duties  of  their 
office  on  the  first  Tuesday  in  May,  immediately  after  the  elec- 


INFERIOR  COURTS  IN  CITIES.  469 

tion,  and  hold  their  office  for  four  years,  and  until  a  successor 
is  duly  chosen  and  qualified.     (Id.  sec.  3.) 

The  powers  and  duties  of  these  Justices  were  created  and  are 
defined  by  an  act  passed  February  16th,  18'21,  and  by  several 
acts  amendatory  of  the  same,  since  passed.*     (Id.) 

The  Revised  Statutes  declare  that  the  several  provisions  rela- 
ting to  Justices  of  the  Peace  in  the  country,  so  far  as  the  same 
may  be  applicable,  shall  apply  to  this  court,  except  in  those 
cases  where  repugnant  provisions  exist  in  the  act  organizing  it, 
or  in  acts  relating  thereto.     (2  R.  S.  362,  sec.  237.) 

The  analogy  of  its  powers  and  duties  to  those  of  Justices  of 
the  Peace  in  towns,  is  explicitly  declared  by  an  act  passed  in 
1845.  (Laws  of  1845,  ch.  207.)  It  has  also  cognizance  of 
actions  upon  the  charter  or  by-laws  of  the  corporation  of  the 
city,  where  the  penalty  or  forfeiture  does  not  exceed  one  hun- 
dred dollars.     (Code,  sec.  67.) 

On  the  return  of  any  civil  process,  or  on  the  day  to  which 


*  The  act  creating  the  Justices'  Court  of  the  city  of  Albany,  passed  February 
16,  1821,  enacts  that  the  Governor  shall  appoint  and  commissiou,  by  and  with  the 
advice  and  consent  of  the  council  of  appointment,  three  proper  and  discreet  persons, 
to  be  called  and  known  by  the  name  of  the  Justices  of  "  The  Justices'  Court,  in 
and  for  the  city  of  Albany,"  to  hold  their  offices  for  three  years. 

The  same  act  authorizes  them  to  hold  a  court  at  the  capitol  in  the  city  of  Al- 
bany, or  at  such  other  proper  and  convenient  place  in  the  city,  as  the  common 
council  may  at  any  time  direct  and  appoint.     (Sec.  3.) 

The  fifth  section  provided,  that  no  judgment  should  be  given,  or  any  rule  or 
order  made,  in  any  cause  in  the  said  court,  to  be  held  before  the  said  Justices,  nor 
any  conviction  be  had  upon  any  statute  or  law,  unless  two  of  the  same  Justices 
thereby  authorized  to  hold  such  court  were  present ;  and  if  only  one  of  thera 
should  attend  on  any  court  day,  he  should  adjourn  the  said  court  to  the  next  court 
day  ;  and  if  on  any  court  day,  neither  of  them  should  attend,  then  the  clerk  of  the 
same  court,  should  and  might  adjourn  the  court  to  the  next  court  day :  provided 
Hevertheless,  that  it  should  and  might  be  lawful  for  any  one  of  the  said  Justices  to 
receive  the  confession  of  the  defendant  or  defendants,  of  the  action  of  the  plaintiff, 
and  of  the  debt  and  damages,  or  sum  of  money  due  to  the  plaintiff,  and  to  give 
judgment  and  issue  execution  thereupon,  in  like  manner  as  if  an}'  two  of  them 
were  present ;  and  further,  that  in  case  of  sickness  or  death  of  any  two  of  the  said 
Justices,  then  and  in  that  case,  the  survivor  should  have  power  to  hold  the  court, 
to  hear,  try  and  determine  the  causes,  in  the  same  manner  as  if  two  of  the  said 
Justices  were  present. 

It  further  declares  it  to  be  a  court  of  record,  and  confers  upon  it  exclusive  juris- 
diction in  the  city  of  Albany,  to  hear,  try  and  determine,  all  actions  which  were 
then  cognizable  before  a  single  Justice  of  the  Peace,  in  the  said  city,  and  to  pro- 
ceed in  like  manner,  except  as  otherwise  provided. 


470  OF  JUSTICES',  AND  OTHER 

any  cause  is  adjourned,  if  only  one  of  the  parties  in  any  suit 
appears,  one  Justice  may  try  and  render  final  judgment,  in  the 
same  manner  as  if  two  or  more  of  the  Justices  were  present. 
(Laws  of  1844,  ch.  347,  sec.  1.) 

The  court  has  authority  for  reasonable  cause,  to  suspend  for 
a  limited  time,  or  totally  exclude,  any  person  from  appearing  or 
advocating  as  attorney  or  counsel,  for  any  other  person,  in  any 
cause  or  proceeding  pending  in  the  court ;  but  the  reason  for 
such  suspension  or  exclusion,  must  be  entered  at  length  in  the 
book  of  records  kept  by  the  court.     (Id.  sec.  2.) 

The  Justices  and  Clerk  of  the  court,  have  authority  to  exact 
from  all  non-residents  of  the  county  of  Albany  a  deposit  suffi- 
cient to  secure  the  payment  of  all  legal  fees  that  will  be  likely 
to  accrue  before  any  suit  is  commenced,  or  process  granted. 
(Sec.  3.) 

The  Justices  of  this  court  have  the  like  authority  to  remove 
any  constable  elected  in  any  of  the  wards  of  the  city  of  Albany 
for  the  like  causes,  and  the  like  manner  that  any  three  Justices 
of  any  town  have,  to  remove  any  constable  in  any  town ;  the 
said  Justices  filing  the  instrument  of  removal  in  the  office  of  the 
county  clerk,  in  the  city  of  Albany.     (Sec.  4.) 

In  case  there  is  any  vacancy  in  the  office  of  any  constable  to 
be  elected  by  the  qualified  voters  in  either  of  the  wards  of  the 
city  of  Albany,  for  the  term  of  two  weeks  or  more,  the  Justices 
of  tiie  court  may  supply  the  vacancy,  in  the  same  manner  that 
any  three  Justices  may  supply  vacancies  in  certain  town  offices. 
(Sec.  5.) 

Any  vacancy  which  may  happen,  the  office  of  Justice  must 
be  filled  by  the  Common  Council  of  the  city.  It  is  provided  that 
the  person  appointed  to  fill  the  same  shall  hold  his  office  until 
the  first  Tuesday  in  May,  next  ensuing.  If  the  vacancy  shalj 
have  been  filled  during  the  first  three  years  of  the  official  term 
of  the  former  incumbent,  an  election  must  be  had  at  the  next 
charter  election  to  fill  such  office.  It  is  provided  that  the  per- 
son then  elected  shall  liold  his  office  until  the  expiration  of  the 
regular  official  Uwrn  of  four  years,  for  which  tlie  person  last  be- 
fore elected  shall  liave  been  chosen,  and  until  a  successor  is 
duly  chosen  and  (jualified.     (Laws  1848,  ch.  70,  sec.  4.) 

It  is  provided  tli;it  the  Justices  of  this  court  shall  be  paid  a 
salary  of  not  less  llian  eight  Innidred  dollars,  nor  more  than 
one  thousand  dollars  a  year,  each,  in  lieu  of  all  fees  and  perqui- 


INFERIOR  COURTS  IN  CITIES.  471 

sites  whatsoever,  to  be  fixed  by  the  Common  Council  from  time 
to  time,  as  they  may  deem  best,  but  which  cannot  be  increased 
or  diminished,  during  the  official  term  of  any  incumbent,  so  as 
to  affect  his  compensation  during  that  term.     (Id.  sec.  5.) 

It  is  enacted  that  one  of  the  Justices  of  the  Albany  Justices' 
Court,  shall  act  as  clerk  of  said  court.  It  is  the  duty  of  the 
clerk,  on  the  first  Monday  of  each  month,  to  report  to  the  cham- 
berlain of  the  city  of  Albany,  an  account  of  the  amount  of  costs 
so  received  by  him,  during  the  preceding  month,  and  pay  the 
same  to  the  chamberlain.  The  report  must  be  accompanied  by 
his  affidavit,  that  the  report  is  correct.     (Id.  sec.  6.) 

10.    The  Justices'  Court  of  the  City  of  Troy. 

It  was  provided,  by  an  act  passed  February  28th,  1848,  that 
there  should  be  elected  at  the  next  charter  election  to  be  held  in 
the  city  of  Troy,  on  the  first  Tuesday  of  March  following,  in  the 
same  manner,  as  the  general  assessor  of  said  city  is  elected,  three 
Justices  and  one  clerk  of  the  Justices'  Court,  in  and  for  the  city 
of  Troy.     (Laws  1848,  ch.  56,  sec.  1.) 

It  was  further  provided  that  one  of  the  said  Justices  should 
hold  his  office  for  one  year,  one  for  two  years,  and  one  for  three 
years,  from  and  after  the  second  Tuesday  of  March,  1848  ;  and 
the  Common  Council  of  the  city  were  required  on  that  day  to 
designate,  by  lot,  which  of  said  Justices  should  hold  his  office 
for  one  year,  which  for  two,  and  which  for  three  years.  The 
clerk  was  to  hold  his  office  for  three  years.     (Sec.  2.) 

It  was  enacted  that  there  should  be  elected  at  each  annual 
charter  election  thereafter,  one  Justice,  to  hold  his  office  for  three 
years,  and  every  third  year  thereafter,  one  clerk  of  said  court. 
(Id.) 

In  case  of  a  vacancy  happening  in  the  office  of  Justice  or 
clerk,  the  Common  Council  of  the  city  are  required  to  appoint  a 
successor,  to  hold  his  office  until  the  second  Tuesday  of  March 
next,  after  the  appointment.  If  the  vacancy  happen  in  the  office 
of  a  Justice,  whose  term  of  office  would  not  expire  on  the  second 
Tuesday  of  March,  there  must  be  elected  at  the  annual  charter 
election  next  after  such  vacancy,  a  Justice  to  fill  the  vacancy 
from  and  after  the  second  Tuesday  of  March  following,  for  the 
residue  of  the  unexpired  term,  and  if  in  the  office  of  clerk,  a  suc- 
cessor must  be  elected  for  the  term  of  three  years.     Whenever 


472  OF  JUSTICES',  AND  OTHER 

there  is  an  election  to  fill  a  vacancy,  otherwise  than  by  the  ex- 
piration of  the  term  of  office,  the  ballot  must  designate  the  per- 
son intended  to  fill  the  office  for  the  unexpired  term.     (Sec.  3.) 

The  Justices  so  elected,  possess  all  the  power  and  authority  in 
all  respects,  hitherto  vested  in  the  Justices  of  the  said  Justices' 
Court.  They  are  severally  Justices  of  the  Peace  of  the  county 
of  Rensselaer,  and  have  full  power  and  authority  to  hear,  try, 
and  determine  all  cases  lawfully  arising  under  the  laws  and  or- 
dinances of  the  Common  Council  of  the  city  of  Troy.  They  are 
commissioners  of  deeds  for  the  city,  by  virtue  of  their  offices. 
Their  fees,  and  the  fees  of  their  clerk  are  the  same  as  formerly. 

The  jurisdiction  of  this  court  is  similar  to  that  of  courts  of 
Justices  of  the  Peace  in  the  country.*     (Laws  1845,  ch.  207.) 

It  has,  also,  jurisdiction  of  actions  upon  the  charter,  or  by 
laws  of  the  corporation  of  the  city,  where  the  penalty  or  forfeit- 
ure does  not  exceed  one  hundred  dollars.     (Code,  sec.  67.) 

It  is  declared  to  be  a  court  of  record.  (Laws  1844,  ch.  198.) 
Like  the  New  York  Marine  Court,  however,  it  has  no  features  in 
common  with  courts  of  record,  unless  it  be  the  privilege  of  grant- 
ing certificates  of  naturalization. 

All  fees  and  costs  due  to  this  court,  may  be  sued  for  and  re- 


*  An  act  creating  this  court,  was  passed  May  5th,  1834,  authorizing  and  re- 
quiring the  governor,  by  and  with  the  consent  of  the  senate,  from  time  to  time,  to 
appoint  and  commi-ssion  three  persons,  to  be  called  and  known  by  the  name  of  "  the 
Justices  of  the  Justices'  Court,  in  and  for  the  city  of  Troy,"  to  hold  their  offices  for 
four  years. 

Section  5th  provides  that  except  as  is  thereinafter  excepted,  no  judgment  shall 
be  given  or  rendered,  nor  any  rule  or  order  made,  in  any  cause  in  the  said  court,  be- 
fore the  said  Justices,  nor  any  conviction  had  upon  any  statute  or  law,  unless  two 
of  the  Justices  authorized  to  hold  such  court,  be  present ;  and  if  only  one  of  them 
shall  attend  on  any  court  day,  he  shall  adjourn  the  said  court  to  the  next  court 
day  ;  and  if  on  any  court  day,  neither  of  said  Justices  shall  attend,  then  the  clerk  of 
the  court  shall  and  may  adjourn  the  court  to  the  next  court  day.  I!iit  it  shall  aad 
may  be  lawful,  for  any  one  of  the  said  Justices  to  receive  the  confession  of  the  de- 
fendant or  defendants,  of  the  action  of  the  plaintilF,  and  of  the  debt  and  damages 
or  sum  of  money  duo  to  the  plaiutitF,  and  to  give  judgment,  and  issue  execution 
thereupon  in  like  manner  aa  if  any  (wo  of  the  said  Justices  were  present.  In 
case  of  the  sickness  or  death,  or  temporary  absence  from  the  city,  of  any  two  of 
the  naid  Justiccfl,  then,  and  in  either  case,  one  of  the  said  Justices  shall  liave 
iiower  to  Iiold  the  said  court,  and  to  hear,  try,  and  determine  the  causes  in  the  same 
manner,  uh  if  two  of  the  said  Justices  were  present.  And  if  eithcrof  the  said  Justices 
shall  1)0  of  the  degree  of  counsellor  at  law  in  the  .Sui)remo  Court,  any  t^ucli  Justice 
shall  have  power  to  hold  said  court,  and  perform  all  the  duties  appertaining  thereto, 
in  the  same  manner  as  if  two  of  the  said  Justices  were  present. 


INFERIOR  COURTS  IN  CITIES.  473 

covered  in  the  name  of  the  clerk.  No  suit  for  such  costs  and 
fees  will  be  abated  by  reason  of  any  vacancy  or  change  in  the 
office  of  the  clerk  after  the  suit  shall  have  been  commenced ; 
but  it  may  be  continued  and  carried  on  to  judgment,  and  execu- 
tion may  be  issued  on  it,  in  the  name  of  the  clerk  in  whose 
name  the  suit  was  commenced.     (Laws  1844,  ch.  198,  sec.  3.) 

11.   The  Justices'  Court  of  the  City  of  Hudson, 

It  was  provided  by  an  act  passed  February  27th,  1840,  that 
there  should  be  elected  at  the  next  charter  election,  to  be  held  on 
the  first  Tuesday  of  April  following,  in  the  same  manner  as  the 
mayor  of  the  city  is  elected,  three  Justices  of  the  Justices'  Court 
in  the  city  of  Hudson.     (Laws  1849,  ch.  53,  sec.  1.) 

It  is  further  provided  that  one  of  the  Justices  so  elected,  shall 
hold  his  office  for  one  year,  one  for  two  years,  and  one  for  three 
years  ;  the  time  to  be  reckoned  from  the  second  Tuesday  of 
April,  1849.  The  Common  Council  are  required  on  that  day,  to 
designate  by  lot,  which  of  the  Justices  shall  hold  his  office  for 
one  year,  which  for  two  years,  and  which  for  three  years  ;  and 
there  must  be  elected  at  each  subsequent  charter  election,  one 
Justice,  to  hold  his  office  for  three  years.     (Id.  sec.  2.) 

In  cases  of  a  vacancy  happening  in  the  office  of  Justice,  the 
Common  Council  of  the  city  are  required  to  appoint  a  successor, 
to  hold  his  office  until  the  second  Tuesday  of  April  next,  after 
his  appointment.  If  the  vacancy  happen  in  the  office  of  a  Jus- 
tice whose  term  of  office  would  not  expire  on  the  second  Tues- 
day of  April,  there  must  be  elected  at  the  annual  charter  election 
next  after  the  vacancy,  a  Justice  to  fill  the  vacancy  from  the 
second  Tuesday  of  April  following  for  the  residue  of  the  unex- 
pired term.  Whenever  there  is  an  election  to  fill  a  vacancy 
otherwise  than  by  the  expiration  of  the  term  of  office,  the  ballot 
must  designate  the  person  intended  to  fill  the  office  for  the  un- 
expired term.     (Id.  sec.  3.) 

The  Justices  are  required  to  appoint  a  clerk  of  the  court,  to 
hold  his  office  during  the  pleasure  of  a  majority  of  the  Justices. 
(Id.  sec.  4.) 

The  Justices  so  elected,  possess  all  the  power  and  authority 
in  all  respects  hitherto  vested  in  the  Justices  of  the  said  Justices' 
Courts.  They  are  severally  Justices  of  the  Peace  of  the  county 
of  Columbia,  and  have  full  power  and  authority  to  hear,  try 


474        OF  JUSTICES',  AND  OTHER  INFERIOR  COURTS,  &c. 

and  determine,  all  cases  lawfully  arising  under  the  laws  and 
ordinances  of  the  city  of  Hudson.     Their  fees,  and  the  fees  of 
their  clerk,  are  also  the  same.* 

The  jurisdiction  given  to  Justices'  Courts  in  towns,  is  declared 
to  extend  to  this  court.  (Laws  of  1845,  ch.  207,  sec,  1.)  It 
has  also  cognizance  of  actions  upon  the  charter  or  by-laws  of 
the  corporation  of  the  city,  where  the  penalty  or  forfeiture  does 
not  exceed  one  hundred  dollars.     (Code,  sec.  67.) 

12.  Application  of  the  Code  to  the  foregoing  subjects. 

The  provisions  of  the  Code  in  reference  to  Courts  of  Justices 
of  the  Peace,  relating  to  forms  of  action,  to  pleadings,  to  the 
times  of  commencing  actions,  to  the  rules  of  evidence,  to  filing 
and  docketing  transcripts  of  judgments,  to  their  effect,  and  the 
mode  of  enforcing  them,  and  to  proceedings  where  title  to  real 
property  comes  in  question,  apply  to  the  courts  embraced  in  this 
chapter  ;  except  that  after  the  discontinuance  of  the  action  in 
the  inferior  court,  upon  an  answer  of  title,  the  new  action  may 
be  brought  either  in  the  Supreme  Court,  or  in  any  other  court 
having  jurisdiction  thereof,  and  except  also,  that  in  the  city  and 
county  of  New  York  a  judgment,  the  transcript  whereof  is 
docketed  in  the  office  of  the  clerk  of  that  county,  has  the  same 
effect  as  a  lien,  and  is  enforced  in  the  same  manner  as  a  judg- 
ment of  the  Court  of  Common  Pleas,  for  the  city  and  county  of 
New  York.     (Code,  sec.  68.) 

*  The  act  creating  this  court,  was  passed  April  16,  1822.  It  provided  that 
three  proper  and  discreet  persons,  to  be  called  and  known  as  the  Justices  of  the 
Justices'  Court  in  the  city  of  Hudson,  should  be  commissioned  respectively,  as 
Justices  of  the  Peace  were  commissioned,  and  should  hold  their  offices  for  the  same 
term  of  time.     (Laws  of  1822,  p.  22G,  sec.  1.) 


PART     II. 

OUTLINES  OF  THE  POWERS  AND  DUTIES  OF  COUNTY  AND 
TOWN  OFFICERS. 


CHAPTER  XX. 

OF    COUNTY    AND    TOWN   OFFICERS. 

The  subjects  of  this  chapter,  are  the  following : — 

1.  Sheriff. 

2.  County  Judge. 

3.  County  Clerk. 

4.  Surrogate. 

5.  District  Attorney. 

6.  County   Treasurer. 

7.  Coroners. 

8.  Superintendents  of  the  Poor. 

9.  Commissioners  of  Loans. 

10.  Notaries  Public. 

11.  Sealers  of   Weights  and  Measures. 

12.  Supervisor. 

13.  Town  Clerk. 

14.  Assessors. 

15.  Collector. 

16.  Constables, 

17.  Commissioiiers  of  Highways. 

18.  Overseers  of  Highioays. 

19.  Overseers  of  the  Poor. 

20.  Town  Superintendent  of  Comm,on  Schools. 

21.  Pound' Masters. 

22.  Toivn  Auditors. 

23.  Com^missioners  of  Excise. 

24.  Fence   Viewers. 


476  OF  COUNTY  AND  TOWN  OFFICERS. 

25.  Compensation  of  County  and  Toimi  Officers. 

26.  County  Charges. 

27.  Town  Charges. 

1.  Sheriff. 

The  constitution  of  this  state  provides,  that  sheriffs  shall  be 
elected  by  the  people  of  their  respective  counties,  once  in  every 
three  years,  and  as  often  as  vacancies  shall  happen.  (Cons., 
art.  10,  sec.  1.) 

A  sheriff  can  hold  no  other  office,  and  he  is  ineligible  for  the 
next  three  years  after  the  termination  of  his  office.     (Id.) 

The  sheriff  is  required,  within  twenty  days  after  he  receives 
notice  of  his  election,  to  execute  a  joint  and  several  bond,  with 
two  or  more  sureties,  who  must  be  freeholders,  in  the  penal 
sum  of  ten  thousand  dollars,  and  in  the  county  of  New  York, 
of  twenty  thousand  dollars,  conditioned  for  the  faithful  per- 
formance of  his  duties.     (1  R.  S.  433,  434.) 


FORM    OP    SHERIFFS    BOND. 

Know  all  men  by  these  presents,  that  we,  William  Cooke, 
Oliver  Ely  and  Hazard  Lewis,  of  the  town  of  Chenango,  in  the 
county  of  Broome,  are  held  and  firmly  bound  unto  the  people 
of  the  state  of  New  York,  in  the  penal  sum  of  ten  thousand 
dollars  to  be  paid  to  the  said  people  ;  for  which  payment  well 
and  truly  to  be  made,  we  bind  ourselves,  our,  and  each  of  our 
heirs,  executors  and  administrators,  jointly  and  severally,  firmly 

by  these  presents.     Sealed  with  our  seals,  and  dated  the 

day  of ,  1849. 

The  condition  of  this  obligation  is  such,  that  whereas,  the 
above  boundcn  William  Cooke  has  been  elected  to  tlic  office  of 
sheriff  of  the  county  of  Broome  aforesaid,  at  the  general  elec- 
tion, [or,  "  at  a  special  election,"]  held  therein,  on  the day 

of  :     Now,  therefore,  if  the  said  William  Coolce  shall 

well  and  faithfully,  in  all  things,  perform  the  duties,  and  exe- 
cute the  office  of  sheriff  of  the  said  county  of  Broome,  during 
his  contiimancc  in  the  said  office  by  virtue  of  tlie  said  election, 


OF  COUNTY  AND  TOWN  OFFICERS.  477 

without  fraud,  deceit,  or  oppression,  then  this  obhgation  to  be 
void,  otherwise  to  remain  in  full  force. 

William  Cooke,  [l.  s.] 
Oliver  Ely,        [l.  s.] 
Hazard  Lewis,    [l.  e.] 
Executed  in  the  presence  of,  and  the 
sureties  approved  by, 

John  More,  Clerk  of  the 
County  of  Broome. 

The  bond  must  be  filed  in  the  clerk's  office  of  the  county 
for  which  the  sheriff"  executing  it  has  been  elected  ;  and  the 
clerk  must,  at  the  time  of  filing  the  same,  administer  to  each  of 
the  sureties  named  therein,  an  oath,  that  he  is  a  freeholder  with- 
in this  state,  and  worth,  if  in  the  city  and  county  of  New  York, 
the  sum  of  twenty  thousand  dollars,  and  if  in  any  other  coun- 
ty, such  sum  as  shall  be  proportionate  to  the  number  of  sureties 
in  such  bond,  and  to  the  amount  of  the  bond  required  in  such 
county,  over  and  above  all  debts  whatever,  owing  by  him.  The 
oath  must  be  endorsed  on  the  bond,  and  subscribed  by  each  of 
the  sureties  in  the  presence  of  the  clerk,  who  must,  notwith- 
standing, judge  for  himself  of,  and  determine,  the  competency 
of  the  sureties.     (1  R.  S.  434,  sec,  101.) 

OATH    OF    sheriff's  SURETY   TO  BE    ENDORSED  ON    THE  BOND. 

Broome  County, 


Town  of  Chenango, 

Oliver  Ely,  one  of  the  sureties  named  in  the  within  bond,  be- 
ing duly  sworn,  says,  that  he  is  a  freeholder  within  the  state  of 
New  York,  and  worth  the  sum  of  ten  thousand  dollars,  over  and 
above  all  debts  whatever,  owing  by  him. 

Oliver  Ely. 

Subscribed  a  nd  sworn,  this day 

of 1849,  before  me, 

John  More,  Clerk  of  the 
County  of  Broome. 

The  constitution  declares,  that  the  sheriff  may  be  required  by 
law  to  renew  his  security  from  time  to  time  ;  and  that  in  default 
of  giving  such  new  security,  his  office  shall  be  deemed  vacant. 
(Cons.  art.  10,  sec.  1.) 


47S  OF  COUNTY  AND  TOWN  OFFICERS. 

The  Revised  Statues  make  it  the  duty  of  every  sheriff  within 
twenty  days  after  the  first  Monday  in  January  of  each  year, 
subsequent  to  that  in  which  he  shaU  have  entered  on  the  duties 
of  his  office,  to  renew  the  security  required  to  be  given  by  him 
before  entering  on  the  duties  of  his  ofiice.  The  renewed  secu- 
rity must  be  in  the  same  amount,  and  be  given  in  the  same 
manner,  and  be  subject,  in  all  respects,  to  the  same  regulations 
as  the  original  security.     (I  R.  S.  434,  sec.  102.) 

The  sheriff  is  required,  as  soon  as  may  be,  after  he  takes  up- 
on himself  the  execution  of  his  office,  to  appoint  some  proper 
person  under  sheriff  of  the  same  county,  to  hold  during  the  plea- 
sure of  the  sheriff;  and  as  often  as  a  vacancy  shall  occur  in  the 
office  of  the  under  sheriff,  or  he  become  incapable  of  executing  the 
same,  another  must,  in  like  manner  be  appointed  in  his  place. 
(Sec.  103.) 

Whenever  a  vacancy  occurs  in  the  ofiice  of  sheriff  of  any 
county,  the  under  sheriff  of  such  county  must,  in  all  things,  ex- 
ecute the  office  of  sheriff  of  the  county,  until  a  sherift'  is  elected 
or  appointed,  and  duly  qualified  ;  and  any  default  or  misfea- 
sance in  office,  of  such  under  sheriff',  in  the  meantime,  as  well 
as  before,  will  be  deemed  a  breach  of  the  condition  of  the  bond, 
given  by  the  sheriff  who  appointed  him,  and  also  a  breach  of 
the  condition  of  the  bond  executed  by  such  under  sheriff,  to  the 
sheriff  by  whom  he  was  appointed.     (Sec.  104.) 

Every  sheriff  may  appoint  such  and  so  many  deputies,  as  he 
may  think  proper ;  and  persons  may  also  be  deputed  by  any 
sheriff,  or  under  sheriff,  by  an  instrument  in  writing,  to  do  par- 
ticular acts.     (Sec.  105.) 

Every  appointment  of  an  under  sheriff,  or  of  a  deputy  sherifl', 
must  be  in  writing,  under  the  hand  and  seal  of  the  sheriff,  and 
must  be  filed  and  recorded  in  the  office  of  the  clerk  of  the 
county.     (Sec.  106.) 

Every  sheriff,  and  under  shcrilf,  or  deputy  sheriff",  must,  before 
he  enters  on  the  execution  of  the  duties  of  his  office,  take  the 
following  oath  :     (Cons.  art.  12.) 

"  I  do  solemt)ly  swear  (or  affirm,  as  the  case  viay  he,)  that  I 
will  support  the  constitution  of  the  United  States,  and  the  con- 
stitulion  of  [\\c  State  of  New  York  ;  and  that  I  will  faithfully 
di.scharg(;  the  duties  of  the  office  of  sherilF,  [or  "  under  sheriff,"] 
[or  "  deputy  sheriff',"  as  the  case  may  6c,]  according  to  the  best 
of  my  ability." 


OF  COUNTY  AND  TOWN  OFFICERS.  479 

Such  oath  of  office  must  be  taken  and  subscribed,  and  depo- 
sited in  the  office  of  the  clerk  of  the  county,  within  fifteen  days 
after  the  officer  shall  be  notified  of  his  election  or  appointment, 
or  wilhin  fifteen  days  after  the  commencement  of  his  term  of  of- 
fice.    (I  R.  S.  123,  124,  sees.  23,  27.) 

If  any  person  shall  execute  any  of  the  duties  or  functions  of 
any  office,  without  having  taken  and  subscribed  the  oath  of  of- 
fice required  by  law,  or  without  having  executed  and  filed,  ia 
the  proper  office,  any  bond  required  by  law,  he  shall  forfeit  the 
office  to  which  he  may  have  been  electedor  appointed,  and  shall 
be  deemed  guilty  of  a  misdemeanor,  punishable  by  fine  or  im- 
prisonment.    (Id.  sec.  33.) 

It  is  the  duty  of  the  sheriff  to  execute  all  writs  and  processes 
directed  to  him ;  to  convey  to  the  state  prison  all  persons  sen- 
tenced thereto  ;  to  attend  the  courts,  when  silting  in  his  county, 
and  to  preserve  order  and  execute  the  process  of  such  courts;  to 
summon  persons  who  have  been  drawn  to  serve  as  grand  or  pe- 
tit jurors  ;  to  arrest  criminals,  and  to  serve  executions,  warrants, 
attachments,  dbc. 

The  sheriff  is  required  to  reside  in  the  county  for  which  he  is 
elected.  It  is  made  his  duty  to  keep  an  office  in  some  proper 
place  in  the  city  or  village  in  which  the  county  courts  are  held; 
of  which  he  must  file  a  notice  in  the  office  of  the  clerk  of  the 
county.  If  there  is  more  than  one  place  of  holding  courts,  the 
notice  must  specify  in  which  his  office  will  be  kept ;  or  it  may 
specify,  that  an  office  will  be  kept  in  all  such  places.  His  office 
must  be  kept  open  in  the  city  of  New  York  from  nine  o'clock  in 
the  forenoon  till  four  o'clock  in  the  afternoon,  and  in  all  other 
parts  of  the  state,  from  nine  to  twelve  o'clock  in  tlie  forenoon, 
and  from  two  to  five  o'clock  in  the  afternoon.  (2  R.  S.  384, 
sees.  61,  62.) 

The  sheriff  may  be  removed  from  his  office  by  the  governor 
of  the  state,  who  is  required  to  give  to  such  officer  a  copy  of  the 
charges  against  him,  and  an  opportunity  of  being  heard  in  his 
defence.     (Cons.  art.  10.) 

Whenever  a  vacancy  exists,  or  shall  occur  in  the  office  of 
sherift',  the  governor  is  required  to  appoint  some  fit  person  who 
may  be  eligible  to  the  office  to  execute  the  duties  thereof,  until 
the  commencement  of  the  political  year  next  succeeding  the 
first  annual  election  after  the  happening  of  the  vacancy.  (Laws, 
1848,  ch.  4.) 


480  OF  COUNTY  AND  TOWN  OFFICERS. 

The  person  so  appointed,  after  taking  the  oath  of  office,  and 
executing  the  proper  bond,  shall  possess  all  the  rights  and  pow- 
ers, and  be  subject  to  all  the  liabilities,  duties,  and  obligations  of 
such  officer.     (Id.) 

2.  County  Judge. 

The  constitution  provides  for  the  election,  in  each  of  the 
counties  of  the  state,  except  the  city  and  county  of  New  York, 
of  one  county  Judge,  who  holds  his  office  for  four  years.  (Cons, 
act,  6,  sec.  14.)  He  holds  the  county  court,  and  (excepting  in 
counties  having  a  population  exceeding  forty  thousand,)  per- 
forms the  duties  of  the  office  of  surrogate.  He  is  also  empow- 
ered, together  with  two  Justices  of  the  Peace,  to  hold  Courts  of 
Sessions.     (Id.) 

The  county  Judge  is  empowered,  and  required,  to  perform  all 
such  duties,  and  do  all  such  acts,  when  uot  holding  a  county 
court,  as  might  have  been  done,  or  performed  by  the  Judges  of 
the  Court  of  Common  Pleas,  or  by  any  one  or  more  of  them,  at 
chambers  or  otherwise,  when  not  holding  court,  or  by  any  such 
Judge,  being  of  the  degree  of  counsellor  of  the  Supreme  Court, 
and  acting  as  a  Supreme  Court  Commissioner.  (Laws,  1847, 
oh.  470,  sec.  27.) 

The  county  Judge  receives  an  annual  salary,  which  is  fixed 
by  the  board  of  supervisors,  and  which  can  neither  be  increased 
nor  diminished,  during  his  continuance  in  office.  (Cons.  art.  G, 
sec.  14.)  He  must  be  paid  at  the  close  of  each  quarter.  (Laws, 
1847,  ch.  277.) 

The  county  Judge  is  required  to  deliver  an  accurate  account 
of  all  fees  and  perquisites  received  and  collected  by  him,  and  of 
all  sums  due  and  unpaid  for  such  services,  at  the  expiration  of 
every  t;ix  months,  from  and  after  the  time  he  enters  upon  the 
duties  of  his  office,  to  the  county  treasurer.  He  must  accompa- 
ny the  account  with  a  certificate,  tbal  the  account  rendered  is  a 
just  and  true  account  of  all  odicial  services  rendered  by  him, 
for  which  fees  are  authorized  by  law,  to  be  demanded,  and  he 
must  ther(!upon  pay  over  all  sums  so  received  by  him,  to  the 
coiiMiy  treasurer.     (Id.) 

Iso  county  .ludge  shall  practice  or  act  as  an  attorney,  solicitor, 
or  counsellor,  in  any  court  of  wliich  he  shall  be,  or  shall  lie  en- 
titled to  act  as  a  mcmlier;  nor  shall  any  partner  of,  or  person 
conncc'cd  in  law  business  with,  any  such  Judge,  practice  or  act 


OF  COUNTY  AND  TOWN  OFFICERS,  481 

as  ail  attorney,  solicitor  or  counsellor,  in  any  court  of  which 
such  Judge  shall  be,  or  shall  be  entitled  to  act  as  a  member,  or 
in  any  cause  or  proceeding  originating  in  such  court ;  nor  shall 
any  such  Judge  practice  or  act  as  a  counsellor  in  any  cause  or 
proceeding  which  shall  have  originated  in  a  court  of  which  he 
shall  be,  or  shall  be  entitled  to  act,  as  a  member.  (Laws,  1847. 
ch.  470,  sec.  48.) 

Whenever  a  cause  or  matter  shall  be  pending  in  any  County 
Court,  in  which  the  Judge  of  such  court  shall  have  been  attor- 
ney, solicitor  or  counsel,  or  shall  be  interested,  or  in  which  he 
would  be  excluded  from  being  a  juror,  by  reason  of  consan- 
guinity, or  affinity  to  either  of  the  parties,  or  in  the  decision  of 
which  he  shall  have  taken  part  when  sitting  as  a  Judge  in  any 
court,  it  shall  be  his  duty  to  make  a  certilicate  stating  such  fact, 
and  file  the  same  in  the  office  of  the  clerk  of  such  County 
Court ;  and  thereupon,  jurisdiction  of  such  cause  or  matter, 
shall  be  vested  in  the  Supreme  Court,  in  which  such  proceed- 
ings shall  be  had  therein,  according  to  the  practice  of  such 
court,  as  might  have  been  had  in  such  County  Court,  if  such 
cause  or  matter  had  remained  therein.     (Id.  sec.  31.) 

The  county  Judge  may  be  removed  by  the  Senate,  on  the 
recommendation  of  the  governor ;  but  no  removal  can  be  made, 
unless  the  cause  thereof  be  entered  on  the  journals,  nor  unless 
the  party  complained  of,  shall  have  been  served  with  a  copy  of 
the  complaint  against  him,  and  shall  have  had  an  opportunity 
of  being  heard  in  his  defence.  On  the  question  of  removal,  the 
ayes  and  noes  must  be  entered  on  the  journals.  (Cons.  art.  6. 
sec.  11.) 

The  legislature,  may.  on  application  of  the  board  of  super- 
visors, provide  for  the  election  of  local  officers,  not  to  exceed 
two  in  any  county,  to  discharge  the  duties  of  county  Judge  and 
of  surrogate,  in  cases  of  their  inability,  or  of  a  vacancy,  and 
to  exercise  such  other  powers,  in  special  cases,  as  may  be  pro- 
vided by  law.     (Id.  sec.  15.) 

County  Court. 

The  court  over  which  the  county  Judge  presides,  has  juris- 
diction in  the  following  actions  and  proceedings  :  (Code,  sec- 
tion 30.) 

1.  The  exclusive  power  to  review  in  the  first  instance,  a  judg- 

31 


482  OF  COUNTY  AND  TOWN  OFFICERS. 

ment  rendered  in  a  civil  action  within  tlie  county  by  a  court  of 
a  Justice  of  the  Peace,  or  by  the  Justices'  Courts  in  cities  ; 

2.  For  the  foreclosure  or  satisfaction  of  a  mortgage,  and  the 
sale  of  mortgaged  premises  situated  within  the  county  ; 

3.  For  the  partition  of  real  property  situated  within  the 
county ; 

4.  For  the  admeasurement  of  dower  in  real  property  situated 
within  the  county ; 

5.  For  the  sale  of  the  real  property  of  an  infant  when  the 
property  is  situated  within  the  county  ; 

6.  To  compel  a  specific  performance  by  an  infant  heir,  or 
other  person,  of  a  contract  made  by  a  party  who  shall  liave 
died  before  the  performance  thereof; 

7.  For  the  care  and  custody  of  the  person  and  estate  of  a 
lunatic  or  person  of  unsound  mind  or  an  habitual  drunkard  re- 
siding within  the  county  ; 

8.  For  the  mortgage  or  sale,  on  the  application  of  a  religious 
corporation,  of  its  real  property  situated  within  the  county  and 
the  appropriation  of  the  proceeds  thereof; 

9.  To  review  judgments  entered  in  the  late  court  of  Common 
Pleas  in  the  county,  and  to  exercise  the  power  and  authority 
heretofore  vested  in  such  Court  of  Common  Pleas,  over  judg- 
ments rendered  by  Justices  of  the  Peace,  transcripts  of  which 
have  been  filed  in  the  office  of  the  county  clerk. 

10.  In  cases  in  which  jurisdiction  was  vested  by  the  Revised 
Statutes,  in  the  late  Courts  of  Common  Pleas,  under  the  pro- 
visions relating  to  attachments  against  absconding,  concealed, 
or  non-resident  debtors  ;  to  voluntary  assignments  made  pursu- 
ant to  the  application  of  an  insolvent  and  his  creditors  ;  to  vol- 
untary assignments  by  persons  imprisoned  on  execution  in  civil 
cases,  and  the  licensing  and  regulation  of  ferries,  and  the  regula- 
tion of  fisheries  in  the  county  until  the  first  day  of  January,  1850  ; 

11.  To  remit  fines  and  forfeited  recognizances,  in  the  same 
cases  and  in  like  manner  as  such  power  was  given  by  law  to 
Courts  of  Common  Pleas. 

It  is  provided  that  at  least  two  general  terms  of  each  County 
Court,  and  as  many  more  as  the  county  Judge  shall  appoint, 
for  the  final  hearing  of  actions  or  proceedings  pending  therein, 
shall  be  held  in  each  year  at  the  places  in  the  counties  respect- 
ively designated  by  statute,  for  holding  County  or  Circuit  Courts 
on  such  days  as  the  county  Judge  shall  from  time  to  time  ap- 


OF  COUNTY  AND  TOWN  OFFICERS.  483 

point,  and  may  continue  as  long  as  the  court  deem  necessary. 
Notice  of  the  appointment  is  required  to  be  pubhshcd  in  the 
state  paper  at  least  four  weeks  before  the  term,  and  also  in  a 
newspaper,  if  any,  printed  in  the  county.  So  many  terms  as 
the  county  Judge  may  designate  for  that  purpose  in  the  notice, 
may  be  held  for  the  trial  of  issues  of  law,  and  hearing  any  de- 
cision of  motions  and  other  proceedings,  at  which  no  jury  can 
be  required  to  attend.     (Code,  sec.  31.) 

Jurors  for  the  County  Court  and  Court  of  Sessions,  must  be 
drawn  from  the  jury  box  of  the  county  and  summoned  in  the 
same  manner,  as  for  the  trial  of  issues  at  a  Circuit  Court.  (Id. 
sec.  32.) 

3.  County  Clerk. 

The  county  clerk  is  elected  in  the  same  manner,  and  for  the 
same  time  as  the  sheriff.  (Cons.  art.  10,  sec.  1.)  He  has  the 
custody  of  the  books,  records,  deeds,  parchments,  maps  and 
papers,  deposited  in  his  office  and  belonging  to  the  county  and 
to  the  courts  of  record  therein.  (1  R.  S.  430,  sec.  75.)  He  is 
required,  at  the  expense  of  the  county,  to  provide  proper  books 
for  the  recording  of  deeds,  mortgages  or  other  conveyances,  ac- 
knowledged or  proved  according  to  law  ;  and  for  the  recording 
of  all  other  papers,  documents  or  matters,  required  by  law  to  be 
recorded  in  his  office,  and  must  receive  and  file  all  papers  and  ' 
documents  directed  to  be  filed  therein.     (Sec.  76.) 

The  county  clerk  is  clerk  of  the  Supreme  Court.  (Cons,  art. 
6,  sec.  19.)  It  is  his  duty  to  attend  the  Circuit  and  County 
Courts,  and  keep  a  minute  of  all  the  convictions,  verdicts,  judg- 
ments, and  of  all  other  proceedings  thereat ;  to  record  deeds, 
mortgages,  and  other  instruments  proved  according  to  law  ;  to 
file  all  papers  required  to  be  put  on  file  in  his  office  ;  to  take  the 
oath  of  office  and  judge  of  the  sufficiency  of  the  sureties  of 
certain  officers  ;  to  report  to  the  proper  officer,  vacancies,  mis- 
conducts, neglect  of  duty,  (fee,  and  to  give  notices,  assess  dam- 
ages, (fee. 

It  is  the  duty  of  every  county  clerk  to  search  the  files,  paper: 
records  and  dockets  in  his  office,  to  make  transcripts  from  any 
such  papers,  records  and  dockets,  and  to  certify  to  the  correct- 
ness of  such  transcripts  and  searches,  when  required  to  do  so, 
and  on  the  payment,  or  offer  to  pay,  the  fees  chargeable  bylaw, 
for  such  service.     If  he  neglect  or  refuse  to  make  such  search 


484  OF  COUNTY  AND  TOWN  OFFICERS. 

transcript,  or  certificate,  he  will  be  deemed  guilty  of  a  misde- 
meanor.    (Laws  1847,  ch.  470,  sec.  40.) 

The  seal  required  to  be  procured  by  any  county  clerk,  is  the 
seal  of  the  county  of  such  clerk,  and  must  be  used  by  him  in 
all  cases  where  he  is  or  shall  be  required,  to  use  an  official  seal. 
(Id.  sec.  36.) 

The  county  clerk  is  required  to  appoint  some  proper  person 
deputy  clerk  of  his  county,  to  hold  during  the  pleasure  of  the 
clerk ;  and  as  often  as  such  deputy  clerk  shall  die,  resign,  or  be 
removed  from  office,  or  remove  out  of  the  county,  or  become  in- 
capable of  executing  the  duties  of  the  office,  another  must  be 
appointed  in  his  place.  Every  such  appointment  must  be  in 
writing,  under  the  hand  and  seal  of  the  clerk,  and  must  be  re- 
corded in  the  office  of  the  clerk  of  the  county.  (1  R.  S.  431, 
sec.  81.) 

Every  person  appointed  to  the  office  of  deputy  clerk,  is  re- 
quired, before  he  enters  on  the  duties  of  his  office  to  take  the 
oath  of  office,  prescribed  in  the  constitution  of  this  state.  (Sec- 
tion 82.) 

Whenever  the  county  clerk  is  absent  from  the  county  or  from 
his  office,  or  by  reason  of  sickness  or  any  other  cause,  is  inca- 
pable of  performing  the  duties  of  his  ofiice,  his  deputy  may 
perform  all  the  duties  appertaining  to  the  ofiice  of  clerk  of  the 
county,  except  that  of  deciding  upon  the  sufficiency  of  sureties 
for  any  officer.     (Sec.  83.) 

No  clerk  or  his  deputy  is  allowed  to  practice  as  a  counsellor 
or  attorney  in  the  court  of  which  they  are  clerks,  during  their 
continuance  in  office.     (1  R.  S.  112,  sec.  32.) 

The  county  clerk  is  required  to  keep  his  office  open  every 
day  in  the  year  except  Sundays  and  the  fourth  of  July,  from 
nine  to  twelve  o'clock,  a.  m.,  and  from  two  to  five  o'clock,  p.  m., 
except,  in  the  city  of  New  York,  where  it  must  be  kept  open 
from  nine  o'clock,  a.  m.  to  four  p.  m.     (2  R.  S.  384,  sec.  61.) 

The  govenor  of  the  state  may  remove  the  county  clerk,  within 
the  term  for  which  he  shall  have  been  elected.  He  must  how- 
ever, first  give  to  such  oflicer  a  copy  of  the  charges  against 
him,  and  an  ()p[)ortunity  of  being  heard  in  his  defence.  (T'ons. 
art.  10,  sec.  1.) 

AVIi'Mievcr  the  office  of  any  county  clerk  becomes  vacant,  his 
deputy  niusl  pcrlnrni  nil  the  duties,  tind  he  will  be  enlillcd  to 
all  the  eniolumcnl^s,  imd  be  subject  to  ail  the  penalties,  appcr- 


OF  COUNTY  AND  TOWN  OFFICERS.  485 

taining  to  the  office  of  clerk  of  the  county,  until  a  new  clerk 
shall  be  elected  for  such  county,  and  duly  sworn.  (1  11.  S,  431, 
sec.  84.) 

4.  Surrogate. 

The  constitution  directs  that  the  duties  of  the  office  of  surro- 
gate, shall  be  performed  by  the  county  judge.  In  counties  hav- 
ing a  population  exceeding  forty  thousand,  however,  the  legis- 
lature may  provide  for  the  election  of  a  separate  officer  to  per- 
form such  duties.  (Const,  art.  6,  sec.  14.  Vide  Laws,  1S49, 
ch.  306.) 

The  surrogate  has  power^(2  R.  S.  318,  sec.  1) — 

1.  To  take  the  proof  of  wills  of  real  and  personal  estate,  in 
the  cases  prescribed  by  law ;  and  also  to  take  proof  of  any  will 
relating  to  real  estate,  situated  within  the  county  of  such  surro- 
gate, when  the  testator  in  such  will  shall  have  died  out  of  this 
state,  not  being  an  inhabitant  thereof,  and  not  leaving  any  as- 
sets therein. 

2.  To  grant  letters  testamentary  and  of  administration. 

3.  To  direct  and  control  the  conduct,  and  settle  the  accounts 
of  executors  and  administrators. 

4.  To  enforce  the  payment  of  debts  and  legacies,  and  the  dis- 
tribution of  the  estates  of  intestates. 

5.  To  order  the  sale  and  disposition  of  the  real  estates  of  de- 
ceased persons. 

6.  To  administer  justice  in  all  matters  relating  to  the  affairs 
of  deceased  persons,  according  to  the  provisions  of  the  statutes 
of  this  state. 

7.  To  appoint  guardians  for  minors,  to  remove  them,  to  direct 
and  control  their  conduct,  and  lo  settle  their  accounts,  as  pre- 
scribed by  law. 

8.  To  cause  the  admeasurement  of  dower  to  widows. 
Every  surrogate  has  power  to  issue  subpoenas  under  his  seal 

of  office,  for  the  purpose  of  compelling  the  attendance  of  any 
witness  or  the  production  of  any  paper  material  to  any  inquiry 
pending  in  his  court,  tlie  form  of  which  must  be  similar  to  that 
used  by  courts  of  record  in  like  cases.  To  punish  disobedience 
to  any  such  subpoena,  and  to  punish  witnesses  for  refusing  to 
testify  after  appearing,  in  the  same  manner,  and  to  the  same  ex- 
tent, as  courts  of  record  in  similar  cases,  and  by  process  similar 
in  form  to  that  used  by  such  courts.     To  issue  citations  to  par- 


486  OF  COUNTY  AND  TOWN  OFFICERS. 

ties  in  all  matters  cognizable  in  his  court,  and,  in  the  cases  pre- 
scribed by  law,  to  compel  the  appearance  of  such  parties.  To 
enforce  all  lawful  orders,  process,  and  decrees  of  his  court  by 
attachment  against  the  persons  of  those  who  neglect  or  refuse 
to  comply  with  such  orders  and  decrees,  or  to  execute  such  pro- 
cess. To  exemplify,  under  his  seal  of  office,  all  transcripts  of 
records,  papers  or  proceedings  therein,  which  must  be  received 
in  evidence,  in  all  courts,  Avith  the  like  effect  as  the  exemplifica- 
tions of  the  records,  papers  and  proceedings  of  courts  of  record. 
To  preserve  order  in  his  court,  during  any  judicial  proceeding, 
by  punishing  contempts  which  amount  to  an  actual  interruption 
of  business,  or  to  an  open  and  direct  contempt  of  his  authority 
or  person,  in  the  same  manner,  and  to  the  same  extent,  as  courts 
of  record.     (2  R.  S.  319,  sec.  6.) 

The  surrogate  of  the  city  and  county  of  New  York  is  re- 
quired to  execute  to  the  people  of  the  state,  with  two  or  more 
sureties,  being  freeholders,  a  joint  and  several  bond  in  the  pen- 
alty of  ten  thousand  dollars,  and  in  every  other  county  of  five 
thousand  dollars,  conditioned  for  the  faithful  discharge  of  his 
duties,  and  a  proper  application  of  all  moneys  that  may  come 
into  his  hands  in  the  course  of  his  official  duties.  (1  R.  S.  437, 
sec.  119.) 

A  surrogate  is  not  permitted  to  act  as  such  in  cases  where  he 
is  interested  in  the  will  or  estate  ;  nor  can  he  practice  or  act  as 
an  attorney,  counsellor,  or  solicitor  in  his  court,  nor  in  any  cause 
originating  in  his  court ;  nor  can  any  partner  of,  or  person  con- 
nected in  law  business  with  any  surrogate,  practice  or  act  as 
attorney,  solicitor  or  counsellor  in  any  cause  or  proceeding  be- 
fore such  surrogate,  or  originating  before  such  surrogate.  (Laws 
1847,  ch.  470,  sec.  51.) 

Whenever  any  surrogate  of  any  county  shall  be  precluded 
from  acting  as  such  in  any  case,  by  reason  of  interest,  relation- 
ship by  consanguinity  or  affinity  to  any  party  interested  therein, 
so  that  he  would  be  excluded  from  being  a  juror,  or  by  reason 
of  being  a  witness  to  any  will,  or  of  having  acted  as  counsel  in 
any  cause,  and  tlierc  shall  be  no  local  officer  in  such  county  to 
discharge  the  duties  of  sucli  surrogate,  or  where  such  local  offi- 
cer shall  also  be  incapable  of  acting  as  such  surrogate,  by  rea- 
son of  the  forogoing  disabilities  in  tlio  case  of  the  surrogate,  the 
county  judge  of  such  (;oini(y,  or  in  c.-ise  of  his  disability  for  like 
cause,  then  the  district  attorney  of  such  county  shall  possess  the 


OF  COUNTY  AND  TOWN  OFFICERS.  487 

power,  and  exercise  the  jurisdiction,  in  all  respects  in  such  case, 
as  the  surrogate  of  such  county  would  be  authorized  to  possess 
and  exercise,  were  it  not  for  such  disabihtj^  (Laws  1817,  ch. 
470,  sec.  32.) 

The  legislature  may,  on  application  of  the  board  of  supervi- 
sors, provide  for  the  election  of  local  officers,  not  to  exceed  two 
in  any  county,  to  discharge  the  duties  of  county  judge  and  of 
surrogate,  in  cases  of  their  inability  or  of  a  vacancy,  and  to  ex- 
ercise such  other  powers  in  special  cases  as  may  be  provided  by 
law.     (Const,  art.  6,  sec.  14.) 

Any  separate  officer  elected  to  perform  the  duties  of  the  office 
of  surrogate,  shall  receive  an  annual  salary  which  shall  be  fixed 
by  the  board  of  supervisors,  and  paid  at  the  close  of  each  quar- 
ter by  the  county  in  which  he  shall  be  elected  ;  and  such  salary 
shall  not  be  increased  or  diminished  during  his  continuance  in 
office.     (Laws  1847,  ch.  277,  sec.  4.) 

All  local  officers  elected  in  any  county  of  this  state,  to  dis- 
charge the  duties  of  county  judge  and  surrogate,  and  exercise 
such  other  powers  in  special  cases  as  may  be  provided  by  law, 
shall,  for  their  services  respectively,  be  paid  by  the  county  in 
which  they  shall  be  elected,  such  reasonable  compensation  as  the 
board  of  supervisors  of  such  county  may  deem  proper  to  allow. 
(Id.  sec.  5. 

5.  District  Attorney. 

There  is  a  district  attorney  for  each  county  of  the  state.  (1 
R.  S.  99.)  He  is  elected  once  in  three  years,  and  as  often  as  a 
vacancy  shall  happen.  (Cons.  art.  10,  sec.  1.)  It  is  his  duty 
to  attend  the  courts  of  Oyer  and  Terminer  and  Sessions  of  the 
Peace,  and  conduct  all  prosecutions  for  crimes  and  offences  com- 
mitted in  the  county,  and  to  prosecute  for  certain  penalties  and 
forfeitures.     (1  R.  S.  437,  438,  sees.  122,  124.) 

No  attorney,  solicitor  or  counsellor  shall,  directly  or  indirectly, 
advise  in  relation  to,  or  aid,  or  take  any  part  whatever  in  the 
defence  of  any  cause,  matter,  suit  or  proceeding  which  shall  be 
brought,  carried  on,  aided,  advocated  or  prosecuted  in  any  court 
of  civil  or  criminal  jurisdiction,  by  any  person  as  district  attor- 
ney or  other  public  prosecutor  with  whom  he  shall  be  interested 
or  connected,  either  directly  or  indirectly,  as  a  partner  in  the 
same  or  any  other  court,  or  take  or  receive,  directly  or  indirectly. 


488  OF  COUISTY  AND  TOWN  OFFICERS. 

of  or  from  any  defendant  therein,  any  fee,  gratuity,  or  reward, 
for  or  upon  any  cause,  consideration,  pretence,  understanding  or 
agreement  whatever,  either  express  or  implied,  having  relation 
thereto  or  to  the  prosecution  or  defence  thereof  (Laws  1846, 
ch.  120,  sec.  1.) 

No  attorney,  solicitor  or  counsellor,  who  shall  have  brought, 
carried  on,  aided,  advocated  or  prosecuted,  or  shall  have  been 
in  any  wise  connected  with  any  cause,  matter,  suit  or  proceed- 
ing in  any  court  as  district  attorney  or  other  public  prosecutor, 
shall,  at  any  time  thereafter,  directly  or  indirectly,  advise  in  re- 
lation to,  or  aid  or  take  any  part  whatever  in  the  defence  thereof, 
or  take  or  receive,  either  directly  or  indirectly,  of  or  from  any 
defendant  therein,  or  other  person,  any  fee,  gratuity  or  reward 
for  or  upon  any  cause,  consideration,  pretence,  understanding  or 
agreement  whatever,  either  express  or  implied,  having  relation 
thereto,  or  to  the  prosecution  or  defence  thereof.     (Sec.  2.) 

Every  attorney,  solicitor  or  counsellor  who  shall  violate  either 
of  the  two  preceding  sections,  shall  be  deemed  guilty  of  a  mis- 
demeanor, and,  on  conviction  thereof,  shall  be  punished  by  a 
fine  or  imprisonment,  or  both,  at  the  discretion  of  the  court ;  and 
he  shall  be  removed  from  office  in  the  several  courts  in  which 
he  is  licensed.     (Sec.  3.) 

This  act  shall  not  be  construed  to  prohibit  any  attorney,  soli- 
citor or  counsellor  from  defending  himself  in  person,  if  prosecu- 
ted either  civilly  or  criminall)'-.     (Sec.  4.) 

The  govejnor  of  the  state  may  remove  any  district  attorney 
at  any  time  within  the  term  for  which  he  shall  have  been  elect- 
ed. He  must,  however,  first  give  to  the  district  attorney  a  copy 
of  the  charges  against  him,  and  an  opportunity  of  being  heard 
in  his  defence.     (Const,  art,  10,  sec.  1.) 

G.  County  Treasurer. 

The  statute  provides  that  in  each  of  the  several  counties  of 
the  state  the  county  treasurer  shall  be  elected  at  a  general  elec- 
tion. Ho  holds  his  office  for  three  years,  and,  except  in  the 
cotmty  of  Kings,  nnist  enter  upon  the  duties  of  his  office  on  the 
first  day  of  January  next  after  his  election.  (Laws  of  1848, 
ch.  130,  sec.  L     Laws,  1849,  ch.  300.) 

It  is  the  duly  of  the  comity  treasurer  to  receive  all  moneys 
belonging  to  the  county,  from  whatever   source  they  may  bo 


OF  COUNTY  AND  TOWN  OFFICERS.  489 

derived,  and  all  moneys  belonging  to  the  state  which  by  law 
are  directed  to  be  paid  to  him,  and  to  pay  and  apply  such 
moneys  in  the  manner  required  by  law.     (1  R.  S.  423,  sec.  35.) 

The  county  treasurer  is  required  to  keep  a  just  and  true 
account  of  the  receipts  and  expenditures  of  all  moneys  which 
come  to  his  hands  by  virtue  of  his  office,  in  a  book  or  books  to 
be  kept  for  that  purpose  ;  which  books  must  be  provided  at  the 
expense  of  the  county.  (Id.  sec.  36.)  He  must,  on  or  before 
the  first  day  of  March  in  each  year,  transmit  to  the  comptroller 
of  the  state,  a  statement  of  all  moneys  received  by  him  during 
the  preceding  year,  for  penalties  belonging  to  the  people  of  the 
state  ;  and  it  is  his  duty,  at  the  same  time  to  pay  to  the  trea- 
surer of  the  state,  the  amount  of  such  penalties.  At  the  annual 
meeting  of  the  board  of  supervisors,  or  at  such  other  time  as 
they  shall  direct,  the  county  treasurer  is  required  to  exhibit  to 
them  all  his  books  and  accoimts,  and  all  vouchers  relating  to 
the  same,  to  be  audited  and  allowed.     (Id.  sees.  37,  38.) 

In  the  counties  where  the  several  towns  support  their  own 
poor,  the  county  treasurer  is  required  to  open  an  account  with 
each  town,  and  credit  the  same  with  all  moneys  received  from 
it,  and  charge  it  with  all  moneys  paid  for  the  support  of  the 
poor  chargeable  thereto  ;  and  if  there  be  a  county  poor  house  in 
such  county,  he  must  charge  to  each  town  the  sum  specified  in 
the  annual  statement  of  the  superintendents  as  being  the  pro- 
portion which  such  town  should  pay  towards  supplying  the 
deficiency,  if  any,  which  may  exist  in  their  funds.  This  ac- 
count he  is  to  lay  before  the  board  of  supervisors,  at  their  anual 
meeting  ;  and  if  there  is  a  balance  against  any  town,  it  is  to  be 
added  to  the  amount  of  taxes  to  be  levied  and  collected  thereof, 
together  with  seven  per  cent  interest  on  the  advances  made  for 
such  town,  which,  when  collected,  is  to  be  paid  to  the  county 
treasurer.     (I  R.  S.  793,  sees.  51,  52,  53.) 

The  county  treasurer  has,  by  virtue  of  his  office,  authority  to 
collect  and  take  charge  of  the  assets  of  every  person  dying 
intestate,  where  such  assets  amount  to  one  hundred  dollars  or 
more,  either  in  his  county  or  out  of  it,  upon  which  no  letters  of 
administration  shall  have  been  granted,  in  the  following  cases  : 
(2  R.  S.  189,  sec.  48.) 

1.  Whenever  such  person  dies,  leaving  assets  in  the  county 
of  such  treasurer,  and  there  is  no  widow  or  relative  in  the 
county  entitled  or  competent  to  take  letters  of  administration  on 


490  OF  COUNTY  AND  TOWN  OFFICERS. 

such  estate  :  2.  Whenever  assets  of  any  person  so  dying  intes- 
tate, shall,  after  his  death,  come  into  the  county  of  such  treasu- 
rer, and  there  is  no  person  entitled  or  competent  as  aforesaid,  to 
take  administration  of  such  estate. 

In  the  above  cases,  intestacy  will  be  presumed  until  a  will  is 
proved,  and  letters  testamentary  issued  thereon.     (Id.) 

For  the  purpose  of  collecting  and  preserving  the  assets,  the 
county  treasurer  may  maintain  suits  in  his  name  of  office,  and 
without  any  other  authority,  in  the  same  manner  as  an  execu- 
tor.    (Id.  sec.  49.) 

Although  there  may  be  a  widow  or  relative  of  any  such  in- 
testate, entitled  to  administration  on  his  estate  in  the  county, 
yet  if  due  proof  be  made  to  the  surrogate  of  the  county  that 
there  are  creditors  or  relatives  of  the  deceased,  residing  more 
than  one  hundred  miles  distant  from  the  residence  of  such  sur- 
rogate, who  are  interested  in  the  distribution  of  the  estate,  and 
that  the  effects  of  the  deceased  are  in  danger  of  waste  or  em- 
bezzlement, he  may  grant  an  order  to  the  treasurer  of  the  county 
authorizing  him  to  seize  and  secure  the  said  effects,  or  any  part 
thereof.     (Id.  sec.  50.) 

Any  property  taken  into  the  charge  of  the  county  treasurer 
that  may  be  in  a  perishing  condition,  may  be  sold  by  him  at 
auction,  on  obtainmg  an  order  for  that  purpose  from  the  surro- 
gate of  the  county.  The  order  must  be  granted  on  due  proof 
of  the  fact,  and  must  specify  the  time  and  manner,  and  the 
notice  of  the  sale.     (Id.  sec.  52.) 

The  powers  and  authority  of  the  count}^  treasurer,  in  relation 
to  the  estate  of  any  deceased  person,  will  be  superseded, 

1.  By  the  production  of  any  letters  testamentary  that  may 
have  been  granted  before,  or  that  shall  be  granted  subsequent 
to  his  becoming  vested  with  the  authority  of  an  administrator 
upon  the  same  estate.  2.  By  the  production  of  any  letters  of 
administration  that  shall  have  been  granted  to  any  other  person 
upon  the  same  estate,  before  the  said  county  treasurer  became 
vested  with  the  powers  of  an  administrator  thereon.  3.  By  the 
production  of  any  letters  of  administration  issued  by  the  surro- 
gate of  any  county  in  this  state,  of  which  the  deceased  was  a 
resident  at  the  time  of  his  death,  granted  after  the  county  trea_ 
surer  may  have  become  vested  with  the  powers  of  an  adminis- 
trator upon  the  estate  of  sticli  deceased.     (2  K.  S.  191,  sec.  67.) 

All  acts  done  by  the  county  treasurer  in  good  faith,  previous 


OF  COUNTY  AND  TOWN  OFFICERS.  491 

to  notice,  will  be  valid  ;  and  all  suits  commenced  by  him,  may- 
be continued  by  and  in  the  name  of  the  executor  or  adminis- 
trator of  the  estate  in  relation  to  which  such  suit  may  be 
brought.     (Id.  sec.  69.) 

Upon  receiving  letters  of  administration,  the  county  treasurer 
will  be  vested  with  all  the  powers  and  rights  of  other  adminis- 
trators, and  will  be  subject  to  similar  duties  and  obligations. 
(Id.  sec.  70.) 

Whenever  any  district  attorney  refuses  or  neglects  to  account 
for  and  pay  over  moneys  received  by  him,  which  he  is  required 
to  pay  into  the  county  treasury,  it  is  the  duty  of  the  county 
treasurer  to  cause  a  suit  to  be  instituted  for  the  recovery  of  such, 
moneys,  for  the  benefit  of  the  county,  against  such  district  at- 
torney.    (1  R.  S.  438,  sec.  127.) 

The  county  treasurer,  before  entering  upon  the  duties  of  his 
office,  within  ten  days  after  his  appointment,  must  execute  a 
bond  to  the  board  of  supervisors,  with  two  or  more  sufficient 
sureties,  to  be  approved  of  by  the  supervisors,  in  such  sum  as 
they  may  direct,  for  the  faitliful  and  honest  discharge  of  his 
duties,  and  the  proper  application  of  all  moneys  that  shall  come 
into  his  hands,  and  the  rendering  a  just  and  true  account  thereof 
to  the  board  of  supervisors,  or  to  the  comptroller  of  the  state 
when  required.     (1  R.  S.  432.) 

It  is  provided,  that  the  several  county  treasurers  of  the  state 
shall  receive  for  their  services  such  compensation  as  shall  be 
fixed  by  the  respective  boards  of  supervisors  of  their  respective 
counties,  not  exceeding  the  half  of  one  per  cent  for  receiving, 
and  the  half  of  one  per  cent  for  disbursing,  and  in  no  case  to 
exceed  the  sum  of  five  hundred  dollars  per  annum.  (Laws  of 
1846,  ch.  189.) 

The  county  treasurers  of  the  respective  counties,  are  required 
to  collect  all  of  the  fees  and  perquisites  belonging  to  the  county, 
that  remain  unpaid  for  the  term  of  six  months,  and  for  that 
purpose  are  authorized  and  empowered  to  bring  all  necessary 
suits  in  the  name  of  the  treasurer  of  the  proper  county,  and  pro- 
secute the  same  to  judgment  and  execution  in  all  respects,  in 
the  like  manner,  and  with  the  like  effi^ct,  as  in  other  civil  ac- 
tions.    (Laws  of  1847,  ch.  277,  sec.  10.) 

Any  vacancy  happening  in  the  office  of  county  treasurer, 
must  be  filled  by  appointment  by  the  board  of  supervisors,  until 


492  OF  COUNTY  AND  TOWN  OFFICERS. 

the  first  of  January  succeeding  the  next  general  election  there- 
after.    (Laws  of  1848,  ch.  136.) 

7.   Coroners. 

The  statute  directs  that  there  shall  he  one  coroner  for  the 
city  and  county  of  New  York,  and  four  coroners  for  every  other 
county.  (]  R.  S.  99.)  They  are  elected  by  the  people,  once  in 
every  three  years,  and  as  often  as  vacancies  happen.  (Cons. 
art.  10,  sec.  1.)  They  are  required  to  reside  within  the  county 
or  city  in  which  the  duties  of  their  office  are  to  he  executed.  (1 
R.  S.  105,  sec.  17.) 

Whenever  any  coroner  receives  notice  that  any  person  has 
been  slain,  or  has  suddenly  died,  or  has  been  dangerously 
wounded,  or  has  been  found  dead  under  such  circumstances  as 
to  require  an  inquisition,  it  is  his  duty  to  go  to  the  place  where 
such  person  shall  be,  and  forthwith  to  summon  not  less  than 
nine,  nor  more  than  fifteen  persons,  qualified  by  lavv^  to  serve  as 
jurors,  and  not  exempt  from  such  service,  to  appear  before  him 
forthwith,  at  such  place  as  he  shall  appoint,  to  make  inquisition 
concerning  such  death  or  wounding.     (Laws  of  1847,  ch.  118.) 

Whenever  six  or  more  of  the  jury  appear,  they  must  be  sworn 
by  the  coroner,  to  inquire  how  and  in  what  manner,  and  when 
and  wlicre  such  person  came  to  his  death,  or  was  wounded,  [as 
the  case  may  be,]  and  who  such  person  was,  and  into  all  the 
circumstances  attending  such  deatli  or  wounding  ;  and  to  make 
a  true  inquisition,  according  to  the  evidence  ofi"ered  to  them,  or 
arising  from  the  inspection  of  the  body.  (Id.  sec.  2.  2  R.  S. 
827,  sec.  2.) 

The  coroner  has  power  to  issue  subpoenas  for  witnesses,  re- 
turnaljlo  either  forthwith,  or  at  such  time  and  place  as  he  may 
appoint  therein  ;  and  it  is  the  duty  of  the  coroner  to  cause  some 
surgeon  or  physician  to  be  subpoenaed  to  appear  as  a  witness 
upon  the  taking  of  the  inquest.     (Sec.  3.) 

Every  person  served  with  any  such  subpoena,  will  be  liable 
to  the  same  penalties  for  disobedience  thereto,  and  his  attend- 
ance may  be  enforced  in  like  manner,  as  upon  subpoenas  issued 
in  Justices'  Courts.     (Sec.  4.) 

The  jury,  upon  the  in.spection  of  the  body  of  the  person  dead 
or  wounded,  and  after  hearing  the  testimony,  must  deliver  to 
the  coroner  their  inquisition  in  writing,  to  be  signed  by  them,  in 
wliich  they  must  find  and  certify,  how  and  in  what  manner, 


OF  COUNTY  AND  TOWN  OFFICERS.  493 

and  when  and  where  the  person  so  dead  or  wounded  came  to 
his  death,  or  was  wounded,  [as  the  case  may  be,]  and  who  such 
person  was ;  and  all  the  circumstances  attending  such  death  or 
Avounding,  and  who  were  guilty  thereof,  either  as  princpal  or 
accessary,  and  in  wliat  manner.     (Sec.  5.) 

If  the  jury  find  that  any  murder,  manslaughter,  or  assault, 
has  been  committed,  the  coroner  must  bind  over  the  witnesses 
to  appear  and  testify  at  the  next  criminal  court,  at  which  an  in- 
dictment for  such  offence  can  be  found,  that  shall  be  held  in  the 
county.  And  in  such  case,  if  the  party  charged  with  the  of- 
fence, be  not  in  custody,  the  coroner  has  power  to  issue  process 
for  his  apprehension,  in  the  same  manner  as  Justices  of  the 
Peace.     (Sec.  6.) 

The  coroner  issuing  such  process  has  the  same  power  to  ex- 
amine the  defendant  as  is  possessed  by  a  Justice  of  the  Peace, 
and  may  in  all  respects  proceed  in  like  manner.     (Sec.  7.) 

The  testimony  of  all  witnesses  examined  before  a  coroner's 
jury,  must  be  reduced  to  writing  by  the  coroner,  and  be  returned 
by  him,  together  with  the  inquisition  of  the  jury,  and  all  recog- 
nizances and  examinations  taken  by  him,  to  the  next  criminal 
court  of  record  of  the  county.     (2  R.  S.  828,  sec.  8.) 

In  case  of  the  absence  of  the  coroner  of  the  city  and  county  of 
New  York,  or  of  his  inability  to  attend,  from  sickness  or  any 
other  cause,  at  any  time,  any  alderman  or  special  Justice  of  the 
city  may  perform,  during  such  absence  or  inability,  any  duty 
appertaining  to  the  office  of  coroner  ;  and  such  alderman  or  Jus- 
tice will  possess  the  like  authority,  and  be  subject  to  the  like  ob- 
ligations and  penalties  as  the  coroner.     (Sec.  9.) 

The  coroners  of  the  several  counties  in  the  state  are  required 
to  deliver  over  to  the  treasurer  of  their  respective  counties,  all 
moneys  and  other  valuable  things  which  are  found  with,  or  upon 
the  bodies  of  persons  on  whom  inquests  are  held,  and  which 
shall  not  be  claimed  by  the  legal  representatives  of  sucli  person 
or  persons,  within  sixty  days  after  the  holding  of  the  inquest. 
(Sec.  10.) 

The  county  treasurer  to  whom  any  such  valuable  thing  may 
be  delivered,  is  required,  as  soon  thereafter  as  may  be,  to  con- 
vert the  same  into  money,  and  place  the  same  to  the  credit  of 
the  county  of  which  he  is  treasurer ;  and  if  demanded  w^ithin 
six  years  thereafter,  by  the  legal  representatives  of  the  person 
on  whom  the  same  was  found,  the  treasurer,  after  deducting  the 


494  OF  COUNTY  AND  TOWN  OFFICERS. 

expenses  incurred  by  the  coroner,  and  all  other  expenses  of  the 
county,  in  relation  to  the  same  matter,  is  required  to  pay  over 
the  balance  to  such  legal  representatives.     (Sec.  11.) 

Before  auditing  and  allowing  the  accounts  of  the  coroners, 
the  supervisors  of  the  county  must  require  of  them  respectively, 
a  statement  in  writing,  containing  an  inventory  of  all  money 
and  other  valuable  things  found  with  or  upon  all  persons  on 
whom  inquests  may  have  been  held,  and  the  manner  in  which 
the  same  has  been  disposed  of,  verified  by  the  oath  or  affirma- 
tion of  the  coroner  making  the  same,  that  such  statement  is,  in 
all  respects,  just  and  true,  and  that  the  money  and  other  arti- 
cles mentioned  therein,  have  been  delivered  to  the  treasurer  of 
the  county,  or  to  the  legal  representatives  of  such  person  or  per- 
sons.    (Sec.  12.) 

The  coroners  are  entitled  to  receive  a  reasonable  compensa- 
tion for  making  and  rendering  such  statement,  and  for  their 
trouble  and  services  in  the  preservation  and  delivery  of  said  ef- 
fects and  property,  and  all  reasonable  expenses  incurred  by  them 
in  relation  thereto,  to  be  audited  by  the  board  of  supervisors,  in 
addition  to  the  fees  or  compensation  to  be  allowed  by  them  for 
holding  an  inquest.     (Sec.  13.) 

If  the  office  of  sheriff  and  under  sheriff  both  become  vacant, 
the  Judge  of  the  county  is  to  designate  one  of  the  coroners  to 
act  as  sheriff ;  and  if  the  coroner  accept,  he  must  execute  the 
like  bond,  and  be  subject  to  all  the  duties  and  liabilities  of  the 
sherif}'.  When  the  sheriff  is  a  party  in  any  proceeding,  the  pro- 
cess therein  must  be  executed  by  the  coroner,  to  whom  it  may 
be  delivered  ;  and  he  has  the  like  authority,  and  is  subject  to 
the  same  obligations  and  liabilities  as  the  sheriff,  and  is  entitled 
to  the  same  fees.     (1  R.  S.  435.    2  R.  S.  538.) 

The  compensation  to  be  paid  to  the  coroners  of  the  several 
cities  and  counties  of  the  state,  for  holding  any  inquest  in  the 
cases  authorized  by  law,  must  be  fixed,  and  together  with  all  ne- 
cessary incidental  expenses,  nuist  be  audited  and  allowed  by 
the  board  of  supervisors  of  the  respective  counties,  and  paid  in 
like  manner  as  other  county  charges.     (2  R.  S.  840,  sec.  16.) 

The  coroner  may  be  removed  by  the  governor  of  the  state, 
after  first  giving  to  such  officer  a  copy  of  the  charges  against 
him,  and  an  opportunity  of  being  heard  in  his  defence.  (Cons, 
art.  10.) 


OF  COUNTY  AND  TOWN  OFFICERS.  495 

8.  Superintendents  of  the  Poor. 

The  board  of  supervisors  in  any  county,  at  any  annual  meet- 
ing of  such  board,  may  direct,  by  resolution,  that  thereafter  only 
one  county  superintendent  of  the  poor  shall  be  elected  in  and 
for  such  county,  to  hold  his  office  for  three  years  ;  but  in  alt 
counties  where  no  such  resolution  shall  have  been  passed,  three 
county  superintendents  of  the  poor  must  be  elected.  (Laws 
1847,  ch.  498.) 

In  counties  where  three  superintendents  of  the  poor  are  cho- 
sen, one  is  required  to  be  elected  annually,  to  hold  his  office  for 
three  years.     (Laws  1847,  ch.  498,  sec.  3.) 

When  vacancies  happen  in  the  offices  of  county  superinten- 
dents of  the  poor,  they  must  be  filled  by  appointment  of  the 
board  of  supervisors.     (Id.  sec.  4.) 

Every  person  elected  to  the  office  of  superintendent  of  the 
poor,  is  required  within  ten  days  after  his  election,  to  give  a 
bond  to  the  supervisors,  with  two  or  more  sufficient  sureties,  to 
be  approved  by  the  board  of  supervisors,  and  in  such  sum  as 
they  shall  direct,  conditioned  that  such  person  will  faithfully 
execute  the  duties  of  his  office,  and  pay,  according  to  law,  all 
moneys  which  may  come  to  his  hands  as  superintendent  of  the 
poor,  and  render  a  just  and  true  account  thereof,  to  the  board  of 
supervisors.     (Laws  1848,  ch.  327,  sec.  1.) 

Such  bond,  with  the  approbation  of  the  board  of  superAdsors, 
endorsed  thereon  by  their  clerk,  must  be  filed  in  the  office  of  the 
county  clerk.     (Id.  sec.  2.) 

The  county  superintendents  of  the  poor  are  a  corporation,  pos- 
sessing the  usual  powers  of  a  corporation  for  public  purposes. 
They  are  required  to  meet  as  often  as  the  supervisors  of  the 
county  shall  direct,  at  the  county  poor-house,  if  there  be  one,  or 
at  the  place  of  holding  courts  in  their  county,  or  at  one  of  the 
places  of  holding  courts,  if  there  be  more  than  one,  and  at  such 
other  times  and  places  as  they  shall  think  expedient.  They 
have  a  general  superintendence  and  care  of  the  county  poor  in 
their  respective  counties  ;  and  have  power,  and  it  is  their  duty, 

1.  To  provide  suitable  places  for  the  keeping  of  such  poor, 
when  so  directed  by  the  supervisors  of  any  county,  where  houses 
for  that  purpose  have  not  been  erected  by  the  county  ;  and  for 
that  purpose  to  rent  a  tenement  or  tenements,  and  land  not  ex- 
ceeding fifty  acres,  and  to  cause  the  poor  of  the  county  to  be 


496  OF  COUiNTY  AND  TOWN  OFFICERS. 

maintained  in  such  places.  2.  To  establish  and  ordain  pruden- 
tial rules,  regulations,  and  by-laws,  for  the  government  and  good 
order  of  such  places  so  provided,  and  of  the  county  poor  houses, 
and  for  the  emplyment,  relief,  management  and  government  of 
the  persons  therein  placed  ;  but  such  rules  and  regulations  will 
not  be  valid  until  sanctioned  by  the  Judge  of  the  county,  in 
writing.  3.  To  employ  suitable  persons  to  be  keepers  of  such 
houses  or  places,  and  all  nccessarj^  oflicers  and  servants,  and  to 
vest  such  powers  in  them  for  the  govonment  of  such  houses,  as 
shall  be  necessary,  reserving  to  the  paupers  who  may  be  placed 
under  the  care  of  such  keepers,  the  right  of  appeal  to  the  super- 
intendents. 4.  In  counties  where  a  poor-house  is  erected,  or 
other  place  provided  for  the  poor,  to  purchase  the  furniture,  im- 
plements, and  materials  that  shall  be  necessary,  from  time  to 
time,  for  the  maintenance  of  the  poor  therein,  and  their  employ- 
ment in  labor  or  manufactures,  and  to  sell  and  dispose  of  the 
proceeds  of  such  labor,  as  they  shall  deem  expedient.  5.  To  pre- 
scribe the  rate  of  allowance  to  be  made  to  any  persons  for  bring- 
ing paupers  to  the  county  poor  house,  or  place  provided  for  the 
poor,  subject  to  such  alterations  as  the  board  of  supervisors  may, 
by  a  general  resolution,  make.  6.  To  authorize  the  keepers  of 
such  houses  or  places  so  provided,  to  certify  the  amount  due  to 
any  person  for  bringing  such  paupers  ;  which  amount  must  be 
paid  by  the  county  treasurer,  on  the  production  of  such  certifi- 
cate, countersigned  and  allowed  by  any  two  superintendents. 
7.  To  decide  any  dispute  that  shall  arise  concerning  the  set- 
tlement of  any  poor  person,  summarilj^,  upon  a  hearing  of  the 
parties  ;  and  for  that  purpose,  to  issue  subpoenas  to  compel  the 
attendance  of  witnesses,  and  to  administer  oaths  to  them  in  the 
same  manner,  with  the  like  power  to  enforce  such  process,  as  is 
given  to  Justices  of  the  Peace  in  any  matter  cognizable  by  them  ; 
their  decisions  must  be  filed  in  the  office  of  the  county  clerk,  with- 
in thirty  days  after  they  are  made,  and  will  be  conclusive  and  final 
upon  all  parlies  interested.  8.  To  direct  the  commencement  of 
suits  by  any  overseers  of  the  poor,  who  shall  be  entitled  to  prose- 
cute for  any  penalties,  or  upon  any  recognizances,  bonds,  or  se- 
curities talvon  for  the  indemnity  of  any  town,  or  of  the  county  ; 
and  in  case  of  the  neglect  of  any  such  overseer,  to  commence 
and  C()ndn<;t  .such  suit  wilb^ut  the  autlioiily  of  such  overseers, 
in  their  names.  1).  To  draw,  from  time  to  time,  on  the  county 
treasurer,  for  all  the  necessary  expenses  incurred  in  the  dis- 


OF  COUNTY  AND  TOWN  OFFICERS.  497 

charge  of  their  duties  ;  while  drafts  must  be  paid  by  him  out  of 
the  moneys  placed  iti  his  hands  for  the  support  of  the  poor. 
10,  To  render  to  the  board  of  supervisors  of  their  county,  at  their 
annual  meeting,  an  account  of  all  moneys  received  and  expen- 
ded by  them,  or  under  their  direction,  and  of  all  their  proceed- 
ings, 11.  To  pay  over  all  moneys  remaining  in  their  hands, 
within  fifteen  days  after  the  expiration  of  their  office,  to  the 
county  treasurer,  or  their  successors.     (1  R.  S.  785,  sec.  18.) 

The  support  of  any  pauper  cannot  be  charged  to  the  county 
without  the  sanction  of  the  superintendents.  If  a  pauper  be 
sent  to  the  county  poor  house,  or  place  provided  for  the  poor, 
as  a  county  pauper,  the  superintendents  in  those  counties  where 
the  respective  towns  are  required  to  support  their  own  poor  must 
immediately  inquire  into  the  fact ;  and  if  they  are  of  opinion 
that  such  pauper  has  a  legal  settlement  in  any  town  of  the  said 
county,  they  must,  within  thirty  days  after  such  pauper  shall 
have  been  received,  give  notice  to  the  overseers  of  the  poor  of 
tl^  town  to  which  such  pauper  belongs,  that  the  expenses  of  his 
support  will  be  charged  to  such  town,  unless  the  overseers, 
within  such  time  as  the  superintendents  shall  appoint,  not 
less  than  twenty  days  thereafter,  show  that  such  town  ought 
not  to  be  so  charged ;  and  on  the  application  of  the  over- 
seers, the  superintendents  must  re-examine  the  matter,  and  take 
testimony  in  relation  thereto,  and  must  finally  decide  the  ques- 
tion,— which  decision  will  be  conclusive.  (1  R.  S.  790,  sec, 
39.) 

In  counties  where  there  is  no  county  poor  house  or  other  place 
provided,  no  person  can  be  supported  as  a  county  pauper,  with- 
out the  direction  of  at  least  one  county  superintendent.  In  such 
cases,  the  overseers  of  the  poor  of  the  town  where  such  person 
is,  must  immediately  give  notice  to  one  of  the  superintendents, 
who  must  inquire  into  the  circumstances  ;  and  if  he  is  satisfied 
that  the  pauper  has  not  gained  a  legal  settlement  in  any  town 
of  that  county,  he  must  give  a  certificate  to  that  effect,  and  that 
such  pauper  is  chargeable  to  the  county.  He  is  required  to  re- 
port every  such  case  to  the  board  of  superintendents  at  their 
next  meeting,  who  may  affirm  such  certificate,  or  may  annul 
the  same,  on  giving  due  notice  to  the  overseers  of  the  poor  of  the 
town  interested,  and  after  hearing  the  allegations  and  proofs  in 
the  premises.     (Sec.  40.) 

If  the  superintendent  to  whom  the  overseers  may  have  giver 

32 


498  OF  COUNTY  AND  TOWN  OFFICERS. 

notice,  neglect  to  give  the  certificate,  the  overseers  may  apply  to 
the  board  of  county  superintendents,  who  must  summarily  hear 
and  determine  the  matter,  and  whose  decision  will  be  conclu- 
sive.    (Sec.  41.) 

The  decisions  of  the  board  of  county  superintendents,  in  re- 
lation to  the  settlement  of  any  paupers,  or  to  their  being  a  charge 
upon  the  county,  must  be  entered  in  books  provided  for  that  pur- 
pose, and  certified  by  the  signatures  of  such  of  the  superinten- 
dents as  make  the  decisions  ;  and  a  duplicate  thereof,  certified 
in  the  same  manner,  must  be  filed  in  the  county  clerk's  ofiice 
within  thirty  days  after  the  making  of  any  decision.  Such  ori- 
ginal duplicate,  or  a  copy  thereof,  duly  certified,  will  be  conclu- 
sive evidence  of  the  facts  therein  contained.  (1  R.  S.  791,  sec. 
42.) 

Whenever  the  county  superintendents  take  charge  of  the 
support  of  any  county  pauper  in  those  counties  where  no  poor 
house  is  provided,  they  may  authorize  the  overseers  of  the  poor 
of  the  town  in  which  such  pauper  may  be,  to  continue  to  sup- 
port him  on  such  terms  and  under  such  regulations  as  they 
shall  prescribe  ;  after  which,  no  moneys  can  be  paid  to  the  over- 
seers for  the  support  of  such  pauper,  without  the  order  of  the 
superintendents ;  or  the  superintendents  may  remove  such  pau- 
per to  any  other  town,  and  there  provide  for  his  support  in  such 
manner  as  they  may  deem  expedient.     (Id.  793,  sec.  50.) 

In  those  counties  where  the  respective  towns  are  required  to 
support  their  own  poor,  if  there  be  a  county  poor  house  or  other 
place  in  such  county  provided  for  the  reception  of  the  poor,  the 
superintendents  of  the  poor  of  the  county  are  required  each 
year,  before  the  annual  meeting  of  the  board  of  supervisors  of 
such  county,  to  furnish  to  the  county  treasurer  a  statement  of 
the  sums  charged  by  them  to  the  several  towns  for  the  support 
of  their  poor,  which  must  be  charged  to  such  towns  respectively 
by  the  county  treasurer  in  his  accounts. 

In  counties  in  which  a  poor  house  is  established,  or  a  place 
provided  l)y  the  superintendents  for  the  reception  of  the  poor, 
and  in  which  tlic  several  towns  arc  liable  for  the  support  of 
their  poor  respectively,  it  is  the  duty  of  the  superintendents  an- 
nually, and  during  the  week  preceding  the  annual  meeting  of 
the  board  of  supervisors,  to  make  out  a  statement  of  all  the  ex- 
penses incurred  by  them  the  preceding  year,  and  of  the  moneys 
received,  and  exiiibiling  the  deficiency,  if  any,  in  the  funds  pro- 


OF  COUNTY  AND  TOWN  OFFICERS.  499 

vided  for  the  defraying  such  expenses ;  and  they  are  required 
to  apportion  the  said  deficiency  among  the  several  towns  in  pro- 
portion to  tiie  number  and  expenses  of  the  paupers  belonging 
to  the  said  towns  respectively  who  shall  have  been  pro- 
vided for  by  the  superintendents,  and  must  charge  the  said 
towns  with  the  said  proportions — which  statement  must,  as 
already  directed,  be  delivered  by  them  to  the  county  treasurer. 
(1  R.  S.  793,  sec.  52.) 

The  superintendents  of  the  poor  in  each  county  are  required 
each  year  to  present  to  the  board  of  supervisors,  at  their  annual 
meeting,  an  estimate  of  the  sum  which,  in  their  opinion,  will  be 
necessary,  during  the  ensuing  year,  for  the  support  of  the  county 
poor.     (Sec.  54.) 

It  is  provided  that  the  superintendents  of  the  poor,  in  the  sev- 
eral counties  in  the  state,  shall  audit  and  settle  all  accounts  of 
overseers  of  the  poor.  Justices  of  the  Peace,  and  all  other  per- 
sons, for  services  relating  to  the  support,  relief,  or  transportation 
of  comity  paupers ;  and  shall,  from  time  to  time,  draw  on  the 
county  treasurer  for  the  amount  of  the  accounts  which  they 
shall  so  audit  and  settle.     (1  R.  S.  795,  sec.  62.) 

Every  county  superintendent  who  neglects  to  render  any  ac- 
count or  statement  to  the  board  of  supervisors,  or  to  pay  over 
any  moneys  within  the  time  prescribed  by  law,  forfeits  two  hun- 
dred and  fifty  dollars,  to  be  sued  for  and  recovered  by  and  in 
the  name  of  the  county  treasurer.  The  superintendents  will 
also  be  liable  to  an  action,  either  jointly  or  severally,  by  the 
county  treasurer,  for  all  moneys  in  their  hands  after  the  time  it 
should  have  been  paid  over  according  to  law,  with  interest 
thereon  at  the  rate  of  ten  dollars  upon  the  hundred  for  a  year 
from  the  time  when  the  same  should  have  been  paid  over.  (Id. 
796,  sec.  68.) 

The  superintendents  have  pov/er  to  institute  proceedings  to 
ascertain  the  father  of  bastard  children,  and  to  compel  them  to 
support  such  children.     (1  R.  S.  823.) 

9.  Comtnissioners  of  Loans. 

Commissioners  of  loans  are  nominated  by  the  governor,  and 
appointed  by  him,  with  the  consent  of  the  senate.  They  hold 
their  offices  for  two  years.     (1  R.  S.  118.) 

They  are  appointed  for  the  purpose  of  loaning  certain  public 


500  OF  COUNTY  AND  TOWN  OFFICERS. 

moneys  to  the  citizens  and  inhabitants  of  their  respective  coun- 
ties, to  be  secured  by  mortgage  on  improved  lands  in  the  county 
to  which  they  respectively  belong.  It  is  their  duty  to  apportion 
the  amount  of  money  to  which  their  several  counties  are  enti- 
titled  among  the  towns,  cities,  and  wards  thereof,  according  to 
their  population.  They  are  required  to  keep  their  offices  at  the 
court  house  in  their  several  counties,  or  at  the  place  where  the 
county  courts  are  held,  and  to  give  public  notice  of  the  times 
when  they  will  receive  applications  from  borrowers.  Such  mo- 
neys are  to  be  loaned  in  sums  not  exceeding  two  thousand,  nor 
under  two  hundred  dollars,  except  in  the  city  of  New  York, 
where  the  sums  are  not  to  be  over  fiye  thousand,  nor  under  five 
hundred  dollars.  The  interest  must  be  paid  annually  on  the 
first  Tuesday  of  October  in  each  year,  and  a  credit  of  not  more 
than  five  years  given,  subject  to  being  called  in,  the  one-half  on 
a  previous  notice  of  one  year,  and  the  other  half  on  a  previous 
notice  of  two  years.     (1  R.  S.  425  to  430.) 

Every  person  hereafter  appointed  to  the  office  of  commissioner 
of  loans  in  any  county  in  the  state,  is  required,  before  he  enters 
on  the  duties  of  his  office,  to  give  a  bond  to  the  people  of  the 
state,  with  two  or  more  sufficient  sureties  in  a  sum  equal  to  the 
amount  of  the  mortgages  then  under  the  charge  of  tlie  commis- 
sioners of  loans  of  such  county,  conditioned  that  such  commis- 
sioner will  well  and  truly  perform  the  duties  of  his  office  pur- 
suant to  law,  and  will  demean  himself  therein,  witliout  favor, 
malice,  or  partiality.     (1  R.  S.  424,  sec.  45.) 

The  board  of  supervisors  of  the  county,  together  with  the 
county  judge,  must  be  the  judges  of  the  sufficiency  of  the  sure- 
ties ofi'ered  by  a  loan  officer  ;  and  the  bond  of  every  such  loan 
officer  and  his  sureties,  witli  the  approbation  of  a  majority  of  the 
supervisors  and  of  such  judge  endorsed  thereon,  must  be  filed 
in  the  office  of  the  clerk  of  the  county.     (Sec.  4G.) 

Whenever  the  supervisors  of  any  county  in  the  state  shall 
apprehend  that  any  commissioners  of  loans  or  ]iis  sureties  arc 
likely  to  fail,  it  is  his  duty  to  require  such  commissioner  to  give 
additional  security,  such  as  they  may  deem  reasonable  and  sat- 
isfactory.    (Sec.  48.) 

If  any  loan  oliicer  neglect  or  refuse,  for  tlic  space  of  ten 
days  afl<'r  the  receipt  of  notice,  to  give  such  security  as  is  re- 
quired, the  supervisors  may  appoint  another  loan  officer  in  his 
stead  ;  and  if  a  commissioner  of  loans  neglect  or  refuse,  for  the 


OF  COUNTY  AND  TOWN  OFFICERS.  501 

space  above  specified,  to  give  such  security  as  may  be  required, 
the  supervisors  must  report  such  suspicion,  as  to  the  security 
and  the  refusal  of  the  commissioner  of  loans  to  comply  with 
tlieir  requisition  to  the  governor,  in  order  to  his  removal.  (1 
R.  S.  425,  sec.  49.) 

It  is  the  duty  of  the  loan  officers  and  commissioners  of  loans, 
in  the  several  counties,  to  receive,  from  time  to  time,  all  moneys 
which  shall  become  payable  for  principal  and  interest,  or  for 
either  of  them,  upon  the  mortgages  under  their  charge,  and  to 
keep  an  account  of  all  monies  so  received  by  them.     (Sec.  .50.) 

Whenever  the  loan  officers  or  commissioners  of  loans  deem  it 
necessary  to  require  additional  security,  for  the  purpose  of  se- 
curing the  payment  of  moneys  loaned  by  them  or  their  prede- 
cessors in  office,  either  on  account  of  the  reduction  in  value  of 
the  premises  mortgaged,  or  on  account  of  any  substantial  defect 
in  the  description  of  such  premises  in  the  original  mortgage, 
they  have  power,  and  it  is  their  duty  to  demand  such  additional 
security  as  they  think  requisite,  from  the  mortgagor,  his  repre- 
sentatives or  assigns,  and  to  take  the  same  in  like  manner  as 
origina,l  mortgages  are  directed  to  be  taken  by  them  ;  and  such 
additional  securities  must  be  proceeded  upon,  in  case  of  default 
in  payment,  in  the  same  manner  as  original  mortgages.     (Sec. 

51-) 

In  case  any  mortgagor,  his  heirs  or  devisees,  who  may  be  in 
the  actual  possession  of  the  mortgaged  premises,  neglect  or  re- 
fuse to  give  such  additional  security  as  may  be  required  by  such 
loan  officers  or  commissioners,  for  the  purpose  of  supplying  any 
substantial  defect  in  the  description  of  the  mortgaged  premises, 
the  loan  officers  or  commissioners  of  loans  may  file  a  bill  in 
equity  to  compel  such  mortgagor,  his  heirs  or  devisees,  to  supply 
such  defects.     (Sec.  52.) 

Whenever  any  moneys  are  paid  to  any  loan  officers  or  commis- 
sionsers  of  loans  for  the  principalof  any  loan  under  their  charge, 
the  board  of  supervisors  of  the  county  have  power,  by  resolu- 
tion, to  prohibit  the  re-loaning  of  such  moneys.  In  such  case,  it 
is  the  duty  of  the  loan  officers  or  commissioners  to  pay  to  the 
treasurer  of  this  state  the  moneys  so  received,  within  thirty  days 
after  the  receipt  thereof,  or  if  such  resolution  be  made  subse- 
quent to  such  receipt,  then  within  thirty  days  after  notice  thereof 
(1  R.  S.  426,  sec.  53.) 

If  no  order  is  made  to  the  contrary  by  the  board  of  super- 


502  ^^  COUNTY  AND  TOWN  OFFTCKRS. 

visors,  the  loan  ofiicers  and  commissioners  are  required  to  re- 
loan  all  moneys  received  hj  them  upon  the  mortgages  under 
their  charge,  in  the  manner  prescribed  in  the  several  acts  under 
which  they  may  have  been  appointed,  at  an  interest  of  seven 
per  cent.     (Sec.  54.) 

It  is  the  duty  of  the  loan  officers  and  commissioners  of  loans 
to  exhibit  to  the  board  of  supervisors  of  their  respective  coun- 
ties, at  each  annual  meeting  of  the  board,  all  the  mortgages 
taken  by  them  or  their  predecessors  in  office,  for  moneys  loaned 
pursuant  to  law,  together  with  their  books  of  accounts,  minutes 
and  vouchers ;  in  order  that  the  board  of  supervisors  may  as- 
certain whether  the  moneys  committed  to  the  charge  of  such 
loan  officers  and  commissioners,  have  been  loaned  and  con- 
tinued to  be  kept  as  loans,  according  to  law.     (Sec.  55.) 

It  is  the  duty  of  the  board  of  supervisors  to  examine  such 
mortgages,  accounts  and  minutes,  and  to  certify  under  their 
hands,  the  state  in  which  the}'-  shall  find  the  moneys  under 
charge  of  such  loan  officers  and  commissioners,  and  to  transmit 
their  certificate  bf  mail  to  the  comptroller  of  the  state.  (Sec- 
tion 56.) 

If  it  appear  to  the  comptroller,  from  such  certificate,  that  the 
whole  of  the  mone^^s  under  the  charge  of  the  loan  officers  and 
commissioners  have  not  been  loaned,  as  required  by  law,  it  is 
his  duty  to  order  suits  to  be  commenced  on  the  bonds  of  the 
loan  officers  or  commissioners  so  found  in  default ;  and  it  is  also 
his  duty  to  report  such  commissioners  of  loans,  or  any  or  either 
of  them,  being  in  default,  to  the  governor,  in  order  that  they 
may  be  removed,  and  others  appointed  in  their  place.  (Sec.  57.) 

In  every  case  of  a  mortgage  sale  by  loan  officers  or  commis- 
sioners of  loans,  it  is  their  dnty,  in  addition  to  the  notice  direct- 
ed by  law  to  be  given  of  such  sale,  in  the  several  acts  under 
which  they  are  appointed,  to  cause  a  copy  of  their  advertise- 
ment to  be  published,  for  the  space  of  eight  weeks  successively, 
immediately  preceding  the  day  of  sale,  at  least  once  in  each 
week,  in  one  of  the  newspapers  printed  and  publislicd  in  the 
county  in  which  the  mortgaged  premises  are  situate  ;  or,  if  no 
newspaper  is  printed  and  pul)lishcd  in  such  county,  then  in  the 
county  nearest  thereto,  in  which  a  newspaper  is  printed  and 
published.  Tlio  expense  of  such  publication  must  bo  paid  in 
the  same   inainier  as  the  other  expenses  of  advertising  loan  of- 


OF  COUNTY  AND  TOWN  OFFICERS.  503 

fice  sales  are  by  law  directed  and  required  to  be  paid.     (1  R.  S. 
426,  sec.  58.) 

Whenever  any  county,  in  wliich  loans  may  have  been  made, 
pursuant  to  either  of  the  acts  authorizing  loans  of  moneys  to  the 
citizens  of  this  state,  is  divided,  and  default  is  made  in  the  pay- 
ment of  principal  or  interest  of  any  such  loan,  the  loan  officers 
or  commissioners,  under  whose  care  any  mortgage  given  for  any 
such  loan  may  be,  have  power  to  proceed  to  a  sale  of  the  mort- 
gaged premises,  pursuant  to  the  provisions  of  the  act  under 
which  the  mortgage  has  been  given,  whether  the  mortgaged  pre- 
mises are  situated  within  the  county  of  such  loan  officers  or 
commissioners,  or  not.  In  such  cases,  all  notices  required  to  be 
affixed  or  published,  must  be  affixed  and  published  in  the  coun- 
ty in  which  the  mortgaged  lands  lie,  and  the  sale  must  be  made 
in  that  county.     (Sec.  59.) 

It  is  enacted,  that  the  powers  conferred,  and  the  duties  impo- 
sed, on  the  attorney  general,  by  the  fourth,  fifth,  sixth,  seventh, 
and  eighth  sections  of  title  sixth  of  the  ninth  chapter  of  the  Re- 
vised Statutes,  shall  extend  to  loan  officers  and  commissioners 
of  loans,  in  all  cases  of  foreclosure  under  their  direction,  ex- 
cept that  the  expenses  of  any  appraisement,  by  loan  officers, 
must  be  charged  to  the  county  ;  that  all  purchasers  of  mortga- 
ged premises  made  by  the  loan  officers,  at  any  mortgaged  sale 
had  under  their  direction,  must  be  in  the  name  of  the  board  of 
supervisors,  and  for  the  use  and  benefit  of  their  respective  coun- 
ties ;  and  that  all  purcliases  of  mortgaged  premises,  made  by 
the  commissioners  of  loans,  at  any  mortgaged  sale  had  under 
their  direction,  must  be  for  the  use  and  benefit  of  the  state. 
(Sec.  60.) 

When  mortgaged  premises  are  bid  in  by  loan  officers  or  com- 
missioners of  loans,  for  an  amount  less  than  the  mortgage  mo- 
ney, interest,  and  costs  due,  it  is  the  duty  of  the  comptroller, 
upon  satisfactory  proof  being  made  to  him  that  nothing  more 
can  be  collected  upon  any  covenant  in  the  mortgage,  or  upon  any 
bond  or  other  security  for  the  mortgaged  debt,  and  that  the  defi- 
ciency has  not  arisen  from  any  neghgence  or  fault  of  the  loan 
officers  or  commissioners,  to  credit  them  with  the  full  amount 
due  on  the  mortgage  at  the  time  of  sale,  upon  their  delivering  to 
him  the  original  mortgage,  and  all  other  securities  for  the  mort- 
gage debt.     (1  R.  S.  427,  sec.  61.) 

When  any  moneys  received  by  any  loan  officers,  or  com  mis- 


504  OF  COUNTY  AND  TOWN  OFFICERS. 

sioners  of  loans,  remain  in  their  hands  unloaned,  without  any 
fault  or  negligence  on  their  part,  and  unemployed,  it  is  the  duty 
of  the  comptroller,  on  satisfactory  proof  thereof  being  made  to 
him,  so  to  state  the  accounts  of  such  loan  officers  or  commission- 
ers, that  they  be  not  charged,  with  interest,  on  such  moneys 
whilst  so  remaining  unloaned  and  unemployed.     (Sec.  63.) 

It  is  the  duty  of  the  commissioners  of  loans,  and  loan  officers 
of  the  several  counties,  to  deposite  their  books  of  mortgages  in 
the  clerk's  offices  of  the  respective  counties  for  which  they  were 
appointed,  there  to  remain  at  all  times,  except  when  the  com- 
missioners and  officers  are  in  actual  session  (or  the  despatch  of 
their  official  duties.     (Sec.  67.) 

In  case  the  title  of  lands  sold  by  the  commissioners  of  loans, 
upon  the  foreclosure  of  a  mortgage,  and  by  the  purchaser  again 
mortgaged  to  secure  the  principal  due  on  the  original  mortgage, 
fail,  and  the  second  mortgagor,  for  that  cause,  decline  to  make 
payment  of  interest  or  principal,  the  comptroller  is  required,  up- 
on satisfactory  evidence  thereof,  and  upon  their  release  to  the 
state  in  the  usual  manner,  and  upon  satisfactory  evidence  that 
no  negligence  or  fault  is  imputable  to  the  existing  commission- 
ers, to  pass  to  their  credit  the  amount  of  principal  and  interest 
due  upon  such  mortgage,  and  if  foreclosed,  also  the  proper  costs 
of  the  foreclosure,  and  to  discharge  the  last  mortgagor  ;  but  the 
credit  will  not  discharge  any  other  persons  from  any  liability 
therein.     (Sec.  70.) 

"Whenever  differences  or  difficulties  exist  in  the  settlement  of 
accounts,  between  the  comptroller  and  any  loan  officer,  or  com- 
missioner of  loans,  and  it  is  deemed  by  the  comptroller  necessa- 
ry, he  must  summon  the  loan  officers,  or  the  commissioners  of 
loans,  to  attend  at  his  office,  with  their  books  of  minutes  and  of 
mortgages,  and  all  other  of  their  papers  and  books  which  may 
be  requisite,  within  a  reasonable  time,  to  the  end  that  the  ac- 
counts may  be  reconciled  and  settled  by  a  comparison  between 
them,  and  the  deficiency,  if  any,  known  and  collected.  If  any 
such  loan  officer  refuse  or  neglect  to  appear,  the  comptroller  must 
report  him  or  them,  to  the  governor,  and  to  the  supervisors  of 
their  respective  counties.  The  necessary  disbursements  of  the 
journey  of  the  officers,  must  be  audited  by  the  comptroller  and 
credited  to  lluMii  upon  the  interest  account  of  the  loan  in  their 
charge  ;  unless  ijie  (■oini)troller  is  satisfied,  from  an  investigation 
that  their  conduct  has  been  culpable.     (1  11.  S.  429,  sec.  71. 


OF  COUNTY  AND  TOWN  OFJFICERS.  505 

Actions  may  be  brought  by  the  loan  officers  and  commission- 
ers of  loans  in  a  county,  in  the  name  of  their  respective  officers, 
upon  any  contract  lawfully  made  with  them  or  their  predeces- 
sors in  their  official  cliaracter — -to  enforce  any  liability,  or  any 
duty  enjoined  by  law,  to  such  officers,  or  the  body  they  represent 
— to  recover  any  penalties  ov  forfeitures  given  to  such  officers  or 
the  bodies  they  represent — and  to  recover  damages  for  any  in- 
juries done  to  the  property  or  rights  of  such  officers,  or  of  the 
bodies  represented  by  them.  Such  actions  may  be  brought  by 
such  officers  in  the  names  of  their  respective  offices,  notwith- 
standing the  contract  or  obligation  on  which  the  same  is  foun- 
ded, may  have  been  made  with  or  to,  any  predecessors  of  such 
officers,  in  their  individual  names  or  otherwise,  and  notwithstan- 
ding any  right  of  action  may  have  accrued  previous  to  the  time 
when  the  officers  commencing  such  suit,  entered  upon  the  exe- 
cution of  the  duties  of  their  office.  (2  R.  S.  569,  sec.  106  and 
107.) 

Action  against  the  loan  officers  and  commissioners  of  loans  of 
a  county,  must  be  brought  against  them  individually,  specifying 
in  the  process,  pleadings,  and  proceedings,  their  name  of  office  ; 
and  such  actions  may  be  commenced  in  the  same  manner  as 
against  individuals.     (Id.  sec.  110.     Vide  Cons.  art.  10,  sec.  2) 

10.  Notaries  Ptiblic. 

Notaries  public  are  nominated  by  the  governor,  and  appoint- 
ed by  him  with  the  consent  of  the  senate.  They  hold  their 
offices  for  two  years.     (1  R.  S.  110.) 

Notaries  public  must  reside  in  the  respective  cities  or  coun- 
ties for  which  they  shall  be  appointed,  but  may  execute  the  du- 
ties of  their  office  at  any  place  within  the  state.  (1  R.  S.  105, 
sec.  16.)  There  are  one  hundred  appointed  for  the  city  of  New 
York,  and  as  many  for  the  other  cities  in  the  state  as  the  Com- 
mon Council  thereof  may,  by  resolution,  determine,  which  reso- 
lution must  be  transmitted  to  the  governor  within  twenty  days 
after  being  passed  ;  and  as  many  appointed  for  the  several 
counties  as  the  governor  and  senate  see  fit.     (1  R.  S.  104  ) 

They  have  authority  to  demand  acceptance  and  payment  of 
foreign  bills  of  exchange,  and  to  protest  tlie  same  for  non-accep- 
tance and  non-payment;  and  to  exercise  such  other  powers  and 
duties,  as  by  the  law  of  nations,  and  according  to  commercial 


506  OF  COUNTY  AND  TOWN  OFFICERS, 

usage,  or  by  the  laws  of  any  other  state,  government,  or  coun- 
try, may  be  performed  by  notaries  public.  They  may  also  de- 
mand acceptance  of  inland  bills  of  exchange,  and  payment 
thereof,  and  of  promissory  notes,  and  may  protest  the  samo  for 
non-acceptance  or  non-payment,  as  the  case  may  require.  (2  K. 
S.  382,  sees.  50,  51.) 

-  In  all  actions  at  law,  the  certificate  of  a  notary,  under  his 
hand  and  seal  of  office,  of  the  presentment  by  him  of  any  pro- 
missory note  or  bill  of  exchange,  for  acceptance  or  payment, 
and  of  any  protest  of  such  bill  or  note  for  non-acceptance,  or 
non-payment,  and  of  the  service  of  notice  thereof  on  any  or  all 
of  the  parties  to  such  bill  of  exchange  or  promissory  note,  and 
specifying  the  mode  of  giving  such  notice,  and  the  reputed 
place  of  residence  of  the  party  to  whom  the  same  was  given, 
and  the  post  office  nearest  thereto,  is  presumptive  evidence  of 
the  facts  contained  in  such  certificate  ;  unless  the  defendant  an- 
nex to  his  answer  an  affidavit,  denying  his  having  received  no- 
tice of  the  non-acceptance  or  non-payment  of  such  bill  or  note. 
(Sec.  55.) 

In  case  of  the  death  or  insanity  of  any  notary  public,  or  of 
his  absence  or  removal,  so  that  his  personal  attendance  or  his 
testimony  cannot  be  procured  in  any  mode  provided  by  law,  the  • 
original  protest  of  such  notary,  under  his  official  seal,  upon  such 
seal  and  his  signature  being  duly  proved,  will  be  presumptive 
evidence  of  the  fact  of  any  demand  of  acceptance  or  of  pay- 
ment therein  stated.  So  also,  under  such  circumstances,  any 
note  or  memorandum,  made  by  him  in  his  own  hand- writing,  or 
signed  by  him  at  the  foot  of  any  protest,  or  in  a  regular  register 
of  official  acts  kept  by  him,  will  be  presumptive  evidence  of  the 
fact  of  any  notice  of  non-acceptance  or  non-payment  having 
been  sent  or  delivered,  at  the  time  and  in  the  manner  slated  in 
such  note  or  memorandum.     (2  R.  S.  382,  sec.  52,  53.) 

For  any  misconduct  in  any  of  the  cases  where  notaries  public 
appointed  under  the  authority  of  this  state,  are  autliorized  to 
act.  either  by  the  laws  of  this  state,  or  of  any  other  state,  gov- 
ernment, or  country,  or  by  the  law  of  nations,  or  by  commercial 
usage,  they  will  be  liable  to  the  parlies  injured  for  all  damages 
sustained  ;  and  will  he  subject  to  criminal  prosecution  and  pun- 
ishment, in  the  same  cases,  and  in  the  same  manner,  in  which 
other  public  officers  of  this  state  arc  liable  for  misconduct  in  any 


OF  COUNTY   AND  TOWN  OFFICERS.  507 

ofRcial  duty  or  act,  authorized  or  enjoined  by  the  laws  of  this 
state.     (Id.  sec.  54.) 

11.  Sealer  of  Weights  and  Measures. 

The  secretary  of  state  is  state  sealer  of  weights  and  measures 
by  virtue  of  his  office.  There  is  an  assistant  state  sealer  in  the 
city  of  Albany,  appointed  by  the  governor  and  senate  for  two 
years,  who  is  required  to  be  a  practical  mechanic,  skilled  in  the 
manufacturing  and  regulating  of  weights  and  measures.  The 
sealer  of  the  county  of  Oneida  is  also  an  assistant  state  sealer. 
(1  R.  S.  103.) 

In  every  county  of  the  state  there  must  be  a  county  sealer  of 
weights  and  measures,  appointed  by  the  board  of  supervisors  of 
the  county,  to  hold  his  office  during  the  pleasure  of  the  board 
appointing  him.     (Id.  117.) 

There  must  be  chosen  in  each  town,  at  the  annual  town 
meeting,  a  town  sealer  of  weights  and  measures.     (Id.  387.) 

It  is  the  duty  of  the  assistant  state  sealers  and  the  county 
sealers,  to  carefully  preserve  the  copies  of  the  original  standards 
delivered  to  them  by  the  state  sealer,  and  to  cause  them  to  be 
compared  once  in  every  five  years  with  the  copies  in  the  office 
of  the  clerk  of  the  Supreme  Court.     (Id.  778.) 

The  county  sealer  is  required  to  transmit  to  the  several  town 
sealers,  at  the  expense  of  their  towns,  copies  of  the  original 
standards  sent  him  for  that  purpose,  by  the  state  sealer ;  on 
which  he  must  impress,  in  addition  to  the  state  and  county 
devices,  such  other  device  as  the  board  of  supervisors  may 
direct,  for  the  several  towns,  which  town  device  is  to  be  recorded, 
in  the  county  clerk's  office. 

It  is  the  duty  of  the  county  and  town  sealers,  to  compare  all 
weights  and  measures  brought  to  them  with  the  copies  in  their 
possession,  and  after  making  them  conform  to  the  legal  stand- 
ard, to  seal  and  mark  them.  They  are  entitled  to  a  reasonable 
compensation  for  making  such  weights  and  measures  conform 
to  the  legal  standard. 

Whenever  any  sealer  resigns,  is  removed  from  office,  or  re- 
moves from  the  county  or  town  for  which  he  is  appointed,  it  is 
his  duty,  and  in  case  of  his  death,  the  duty  of  his  representa- 
tives, to  deliver  to  his  successor  all  the  standard  beams,  weights 
and  measures  in  his  possession.     For  a  refusal,  or  neglect,  his 


508  <^^  COUNTY  AND  TOWN  OFFICERS. 

successor  may  maintain  an  action  against  him,  and  recover 
double  the  value  of  such  articles,  with  costs;  one  half  of  which 
he  may  retain,  and  with  the  other  purchase  such  standards  as 
may  be  required.  If  any  person  sustain  loss  or  damage  in  con- 
sequence of  another  using  any  weights,  measures,  or  beams, 
not  conformable  to  the  legal  standards,  he  may  sue  and  recover 
treble  damages,  with  costs  of  suit. 


It  is  enacted  that  certain  county  officers,  among  whom  are 
the  county  judge,  all  local  officers  elected  in  any  county  of  the 
state  to  discharge  the  duties  of  county  judge  and  surrogate,  and 
any  separate  officer  elected  to  perform  the  duties  of  the  office  of 
surrogate,  shall  in  no  case  perform  any  official  services,  unless 
upon  pre-payment  of  the  fees  and  perquisites  imposed  by  law 
upon  any  person  for  services  rendered  by  such  officers,  in  their 
official  capacity.  Upon  payment  being  made,  it  is  the  duty  of 
the  officers  to  perform  the  services  required.  They  are  required 
to  pay  over  all  sums  so  received  by  them,  for  fees  and  perqui- 
sites, after  deducting  their  salaries,  to  the  treasurers  of  the  re- 
spective comities,  on  the  first  Monday  of  May  and  November 
of  each  year.  Also,  to  render  an  account,  giving  each  item  of 
fees  received,  verified  by  their  affidavit,  to  the  board  of  super- 
visors at  their  annual  meeting  of  each  year.  (Laws  of  1849, 
ch.  95.) 


No  person  is  eligible  to  any  town  office,  unless  he  is  an  elec- 
tor in  the  town  where  he  is  chosen.     (1  R.  S.  395,  sec.  26.) 

The  supervisor,  town  clerk,  assessors,  collector,  overseers  of 
the  poor,  commissioners  of  highways,  justices  of  the  peace,  and 
constables,  must  be  chosen  by  ballot.  The  other  town  officers 
may  be  chosen,  either. 

1.  By  ballot ; 

2.  IJy  ayes  and  noes  ;  or, 

3.  IJy  the  rising  or  dividing  of  tlie  electors  ; 
As  tlic  mooting  may  dotcrminc.     (Id.  392,  sees.  2,  3.) 

If  any  town  neglect,  at  i(s  animal  town  meeting,  to  choose 
its  proper  town  officers,  or  either  of  them,  any  three  .lustices  of 
the  Peace  of  the  town  may,  by  warrant,  under  their  hands  and 


OF  COUNTY  AND  TOWN  OFFICERS.  509 

seals,  appoint  such  officers.  The  persons  so  appointed,  hold 
their  respective  offices  until  others  are  chosen  or  appointed  in 
their  places,  and  have  the  same  powers,  and  are  subject  to  the 
same  duties  and  penalties,  as  if  they  had  been  duly  chosen  by 
the  electors.     (1  R.  8.  398,  sec.  50.) 

The  Justices  making  the  appointment,  must  cause  such  war- 
rant to  be  forthwith  filed  in  the  office  of  the  town  clerk,  who  is 
required  forthwith  to  give  notice  to  the  person  appointed.  (Id. 
sec.  51.) 

If  any  person  chosen  or  appointed  to  the  office  of  supervisor, 
assessor,  or  overseer  of  the  poor,  refuse  to  serve,  or  die,  or  resign, 
or  remove  out  of  the  town,  or  become  incapable  of  serving, 
before  the  next  annual  town  meeting  after  he  may  have  been 
chosen  or  appointed,  the  town  clerk  is  required,  within  eight 
days  after  the  happening  of  such  vacancy,  to  call  a  special 
town  meeting  for  the  purpose  of  supplying  the  same.  (Id. 
sec.  53.) 

If  the  electors  do  not  within  fifteen  days  after  the  happening 
of  such  vacancy,  supply  the  same  by  an  election  at  town  meet- 
ing, the  same  must  be  supplied  by  the  Justices  of  the  town  in 
the  like  manner,  and  with  the  like  effect,  as  above  provided. 
(Id.  sec.  54.) 

Vacancies  in  all  town  offices  except  the  office  of  supervisor, 
assessor,  commissioner  of  highways,  overseer  of  the  poor,  col- 
lector, or  overseer  of  highways,  must  be  supplied  by  the  Jus- 
tices of  the  town,  in  the  manner  provided  above.     (Id.  sec.  55.) 

Whenever  a  vacancy  occurs  in  any  town  office  which  Justices 
of  the  Peace  are  authorized  to  fill,  and  there  are  less  than  three 
Justices  residing  in  the  town  in  which  such  vacancy  occurs,  the 
Justice  or  Justices  residing  in  such  town,  may  associate  with 
themselves  one  or  more  Justices  of  the  Peace  from  any  adjoin- 
ing town,  as  may  be  necessary  to  make  the  number  of  three  ; 
and  such  three  Justices  will  have  the  like  power  to  fill  such 
vacancy,  as  if  they  were  respectively  Justices  of  the  town  in 
which  the  vacancy  occurred.     (Id.  sec.  56.) 

Any  three  Justices  of  the  Peace  of  a  town  may,  for  sufficient 
cause  shown  to  them,  accept  the  resignation  of  any  town  officer 
of  their  town.  Whenever  they  accept  any  such  resignation, 
they  must  forthwith  give  notice  thereof  to  the  town  clerk  of  the 
town.     (1  R  S.  398,  sec.  52.) 


510  OF  COUNTY  AND  TOWN  OFFICERS. 

Town  officers  hold  their  offices  for  one  year,  and  until  others 
are  chosen  or  appointed. 

12.  Supervisor. 

The  supervisor  of  each  town  is  required  to  receive  and  pay 
over  all  moneys  raised  therein  for  defraying  town  charges,  ex- 
cept those  raised  for  the  support  of  highways  and  bridges,  of 
common  schools,  and  of  the  poor,  where  poor  moneys  shall  be 
raised  ;  (1  R.  S.  399,  sec.  1 ;)  to  prosecute,  in  the  name  of  his  town 
or  otherwise,  as  may  be  necessary,  for  all  penalties  of  fifty  dol- 
lars or  under,  given  by  law  to  such  town,  or  for  its  use,  and  for 
which  no  other  officer  is  specially  directed  to  prosecute  ;  (Sec. 
2 ;)  to  keep  a  just  and  true  account  of  the  receipt  and  expendi- 
ture of  all  moneys  which  shall  come  into  his  hands  by  virtue 
of  his  office,  in  a  book  to  be  provided  for  that  purpose  at  the  ex- 
pense of  the  town,  and  to  be  delivered  to  his  successor  in  office  ; 
(Sec.  2 ;)  to  attend  the  annual  meeting  of  the  board  of  supervi- 
sors of  the  county,  and  every  adjourned  or  special  meeting  of 
such  board  of  which  he  shall  have  notice ;  (Sec.  6  ;)  to  receive 
all  accounts  which  may  be  presented  to  him  against  the  town, 
and  lay  them  before  the  board  of  supervisors  at  their  next  meet- 
ing ;  (Sec.  7 ;)  to  lay  before  the  board  of  supervisors  such  copies 
of  entries  concerning  moneys  voted  to  be  raised  in  his  town,  as 
shall  be  delivered  to  him  by  the  town  clerk.     (Sec.  8.) 

The  supervisor  is  required,  on  the  Tuesday  preceding  the  an- 
nual town  meeting,  to  account  with  the  Justices  of  the  Peace  and 
the  town  clerk  of  the  town,  for  the  disbursement  of  all  moneys 
received  by  him.  At  every  such  accounting,  the  Justice  and 
town  clerk  are  required  to  enter  a  certificate  in  the  supervisor's 
book  of  accounts,  showing'  the  state  of  his  accounts,  and  the 
date  of  the  certificate.     (Sees.  4  and  5.) 

Whenever  the  supervisor  of  any  town  is  required  by  the  sur- 
veyor-general to  cause  a  survey  to  be  made  of  the  bounds  of  his 
town,  it  is  the  duty  of  such  supervisor,  within  sixty  days  there- 
after, to  cause  such  survey  to  be  made,  and  to  transmit  by  mail 
or  otlierwisc  a  map  and  description  thereof  to  the  stnveyor-gen- 
eral.  The  expense  of  such  survey  and  map  must  be  defrayed 
by  the  several  towns  whose  bounds,  cither  wholly  or  in  part, 
shall  be  described  tliercby — such  expense  to  be  apportioned  by 
the  board  of  supervisors  of  the  county.     If  any  supervisor  re- 


OF  COUNTY  AND  TOWN  OFFICERS  511 

fuse  or  neglect  to  perform  siicli  duties,  lie  will  forfeit  the  sum  of 
fifty  dollars.     (1  R.  S.  399,  400,  sees.  9  and  10.) 

The  supervisors  of  the  several  cities  and  tov/ns  in  each  of  the 
counties  of  the  state,  are  required  to  meet  annually  iu  their  re- 
spective counties  for  the  despatch  of  business,  as  a  board  of  su- 
pervisors. They  may  also  hold  special  meetings  at  such  times 
and  places  as  they  may  find  convenient,  and  have  power  to  ad- 
journ from  time  to  time,  as  they  deem  necessary.  They 
have  power  at  their  meetings — 1.  To  make  such  orders  con- 
cerning the  corporate  property  of  the  county  as  they  may  deem 
expedient ;  2.  To  examine,  settle  and  allow  all  accounts  charge- 
able against  such  county,  and  to  direct  the  raising  of  such  sums 
as  may  bo  necessary  to  defray  the  same  ;  3.  To  audit  the 
accounts  of  town  officers  and  other  persons  against  their  re- 
spective towns,  and  to  direct  the  raising  of  such  sums  as 
may  be  necessary  to  defray  the  same  ;  and,  4.  To  perform 
all  other  duties  which  may  be  enjoined  on  them  by  any  law  of 
the  state.  They  have  power,  also,  at  their  annual  meeting,  or 
when  lawfully  convened  at  any  other  meeting — 1.  To  cause  to 
be  levied,  collected,  and  paid  to  the  treasurer  of  the  county, 
such  sum  of  money  as  may  be  necessary  to  construct  and  re- 
pair bridges  therein,  and  to  prescribe  upon  what  plan  and  in 
what  manner  the  moneys  so  to  be  raised  shall  be  expended  ;  2. 
To  apportion  the  tax  so  to  be  raised  among  the  several  towns 
and  wards  of  their  county,  as  shall  seem  to  them  to  be  equitable 
and  just ;  3.  To  cause  to  be  levied,  collected  and  paid,  all  such 
sums  of  money  as  they  shall  deem  necessary  for  rebuilding  or  re- 
pairing the  court  house  or  jail  of  their  county,  or  for  building,  re- 
building or  repairing  the  clerk's  office  of  the  county,  and  to  pre- 
scribe upon  Vv^hat  plan  and  in  what  manner  the  moneys  so  raised 
shall  be  expended ;  4.  To  appoint  special  commissioners  to  layout 
public  highways  in  those  cases  where  they  shall  be  satisfied 
that  the  road  applied  for  is  important,  and  that  the  authority 
now  conferred  by  law  upon  commissioners  of  highways  cannot 
or  will  not  be  exercised  to  accomplish  the  laying  out  of  sucli 
road  ;  5.  To  cause  to  be  levied,  collected,  and  paid,  in  the  man- 
ner provided  by  law,  such  sum  of  money,  not  exceeding  five 
hundred  dollars,  in  any  one  year,  as  a  majority  of  the  qualified 
voters  of  any  town  may,  at  any  legal  town  meeting,  have  voted 
to  be  raised  upon  their  town,  for  constructing  or  repairing  roads 
and  bridges  in  such  town.     (1  R.  S.  418,  sees.  4  and  5.) 


512  OF  COUNTY  AND  TOWN  OFFICERS. 

Special  meetings  of  the  boards  of  supervisors  of  any  county 
may  be  called  by  the  clerk  of  the  board,  at  any  time,  on  the 
written  request  of  a  majority  of  the  supervisors  of  the  county. 
(Sec.  9.) 

A  majority  of  the  supervisors  of  any  county  constitute  a  quo- 
rum for  the  transaction  of  business ;  and  all  questions  which 
arise  at  their  meetings  must  be  determined  by  the  votes  of  the 
majority  of  the  supervisors  present.  (Sec.  10.)  They  are  re- 
quired to  sit  with  open  doors,  and  all  persons  may  attend  their 
meetings.     (Sec.  11.) 

The  supervisors  are  required,  at  each  annual  meeting,  to 
choose  one  of  their  number  as  chairman,  who  must  preside  at 
such  meeting,  and  in  all  other  meetings  held  during  the  year. 
In  case  of  his  absence  at  any  meeting,  the  members  present 
must  choose  one  of  their  number  as  a  temporary  chairman. 
The  chairman  has  power  to  administer  an  oath  to  any  person 
concerning  any  matter  submitted  to  the  board  or  connected  with 
their  powers  or  duties. 

Each  board  of  supervisors  is  required,  as  often  as  may  be  ne- 
cessary, to  appoint  some  proper  person  to  be  its  clerk,  who  holds 
his  office  during  the  pleasure  of  the  board,  and  whose  duty  it  is, 

1.  To  record,  in  a  book  to  be  provided  for  the  purpose,  all  the 
proceedings  of  the  board ;  2.  To  make  regular  entries  of  all 
their  resolutions  or  decisions  on  all  questions  concerning  the 
raising  or  payment  of  moneys  ;  3.  To  record  the  vote  of  each 
supervisor  on  any  question  submitted  to  the  board,  if  required 
by  any  member  present ;  and,  4.  To  preserve  and  file  all  ac- 
counts acted  upon  by  the  board.     (Sec.  24.) 

The  books,  records  and  accounts  of  the  board  must  be  depo- 
sited with  the  clerk,  and  must  be  open,  without  reward,  to  the 
examination  of  all  persons.  It  is  the  duty  of  the  clerk  to  desig- 
nate, upon  every  account  upon  which  any  sum  may  be  audited 
and  allowed  by  the  board,  the  amount  so  audited  and  allowed, 
and  the  charges  for  which  the  same  was  allowed  ;  and  he  must 
also  deliver  to  any  person  who  may  demand  it,  a  certified  copy 
of  any  account  on  file  in  his  office,  on  receiving  from  such  per- 
son six  cents  for  every  folio  of  one  hundred  and  twenty-eight 
words  contained  in  sncli  copy.     (1  R.  S.  422,  sees,  20,  27.) 

All  accounts  presented  in  any  year  to  the  board  of  supervisors 
of  any  county  must  bo  mimbcred,  fioin  number  one  upwards,  in 
the  order  in  which  they  are  presented  ;  and  a  memorandum  of 


OF  COUNTY  AND  TOWN  OFFICERS.  513 

the  time  of  presenting  the  same,  of  tlie  names  of  the  persons  in 
whose  favor  they  are  made  out,  and  by  whom  they  are  pre- 
sented, must  be  entered  in  the  minutes  of  the  board  to  which 
they  are  presented  ;  and  no  such  account,  after  being  so  pre- 
sented, can  be  withdrawn  from  the  custody  of  the  board,  or  its 
clerk,  for  any  purpose  whatever,  except  to  be  used  as  evidence 
upon  a  judicial  trial  or  proceeding ;  and  in  such  case  it  must, 
after  being  so  used,  be  forthwith  returned  to  such  custody. 
(Sec.  20.) 

It  is  the  duty  of  the  board  of  supervisors,  in  each  county  in 
the  state,  annually  to  publish  in  one  or  more  public  newspapers 
in  such  county,  the  name  of  every  individual  who  shall  have 
had  any  account  audited  and  allowed  by  said  board,  and  the 
amount  of  said  claim  as  allowed,  together  with  the  amount 
claimed,  and  also  their  proceedings  upon  the  equalization  of  the 
assessment  roll.     (Sec.  21.) 

No  account  can  be  audited  by  any  board  of  superviscjrs  for 
any  services  or  disbursements,  unless  such  account  is  made  out 
in  items,  and  accompanied  with  an  affidavit  attached  to,  and  to  be 
filed  with  such  account,  made  by  the  person  presenting  or  claim- 
ing the  same,  that  the  items  of  such  account  are  correct,  and 
that  the  disbursements  and  services  charged  therein  have  been 
m  fact  made  or  rendered,  or  necessary  to  be  made  or  rendered, 
at  that  session  of  the  board,  and  stating  that  no  part  thereof  has 
been  paid  or  satisfied.     (Laws,  1847,  ch.  490.) 

All  fees  and  accounts  of  magistrates  and  other  officers  for 
criminal  proceedings,  including  cases  of  vagrancy,  are  required 
to  be  paid  by  the  several  towns  or  cities  wherein  the  ofience  has 
been  committed  ;  and  all  accounts  rendered  for  such  proceed- 
ings must  state  where  the  offence  was  committed,  and  the  board 
of  supervisors  are  required  to  assess  such  fees  and  accounts 
upon  the  several  towns  and  cities  designated  by  the  accounts. 
(Id.  ch.  455.) 

It  is  made  the  duty  of  clerks  of  boards  of  supervisors,  on 
the  thirty-first  day  of  December,  or  within  ten  days  previous 
thereto,  in  each  year,  to  make  out  a  statement  showing  :  1. 
The  amount  of  compensation  audited  by  the  board  of  supervi- 
sors to  the  members  thereof,  severally,  within  the  year,  and  the 
items  and  nature  of  such  compensation  as  audited.  2.  The 
number  of  days  the  board  shall  have  been  in  session  within 
such  year,  and  the  distance  traveled  by  the  members  respect- 

33 


514  OF  COUNTY  AND  TOWN  OFFICERS. 

ively,  in  attending  the  meeting  of  the  board.  3.  Whether  any 
accounts  were  audited  or  allowed,  without  being  verified  accord- 
ing to  law,  for  any  member  of  the  board  of  supervisors,  or  any 
other  person,  and  if  any,  how  much,  and  for  Avhat.  Such 
statement  must  be  certified  by  the  clerk,  and  be  printed  in  a 
newspaper  printed  in  the  county,  in  the  manner  that  the  ac- 
counts audited  by  boards  of  supervisors  are  required  by  law  to 
be  printed,  within  two  weeks  after  the  statement  has  been  so 
made  out ;  and  it  is  made  the  special  duty  of  the  clerk  to  see 
that  the  same  is  so  published,  and  for  every  intentional  neglect 
so  to  do,  the  clerk  will  be  deemed  guilty  of  a  misdemeanor. 
(Laws  of  1847,  ch.  455.) 

It  is  the  duty  of  the  several  boards  of  supervisors,  as  often  as 
may  be  necessary,  to  cause  the  court  house  and  jail  of  their 
respective  counties  to  be  duly  repaired  at  the  expense  of  such 
counties  ;  but  the  sums  expended  in  such  repairs,  cannot  exceed 
five  hundred  dollars  in  any  one  ^'■ear.  They  are  also  required 
to  cause  to  be  prepared,  within  the  jails  of  their  respective 
counties,  or  elsewhere,  at  the  expense  of  such  counties,  so 
many  solitary  cells  for  the  reception  of  convicts  who  may  be 
sentenced  to  punishment  therein,  as  the  county  court  may 
direct.     (1  R.  S.  422,  sees.  28,  29.) 

The  legislature  at  its  last  session,  enlarged  the  duties  of 
boards  of  supervisors,  vesting  them  with  certain  legislative 
powers,  to  wit :     (Laws  of  1849.) 

It  is  enacted,  that  the  boards  of  supervisors  of  the  several 
counties  in  the  state,  the  county  of  New  York  excepted,  at  their 
annual  meeting,  shall  have  power,  within  their  respective  coun- 
ties, by  a  vote  of  two-thirds  of  all  the  members  elected,  to  divide 
or  alter  in  its  bounds  any  town,  or  erect  a  new  town  ;  but  they 
cannot  make  any  alterations  that  will  place  parts  of  the  same 
town  in  more  than  one  Assembly  District.  Application  to  the 
board  must  be  made  by  at  least  twelve  freeholders  of  each  of 
the  towns  to  be  affected  by  the  division,  and  the  board  must  be 
furnislif'd  witli  a  map  and  survey  of  all  the  towns  to  be  affected, 
showing  the  proposed  alterations  ;  and  if  the  application  is 
granted,  a  copy  of  the  map,  with  a  certified  statement  of  the 
action  of  the  board  annexed,  must  be  filed  in  the  office  of  the 
secretary  of  state,  and  it  is  made  the  duty  of  the  secretary  to 
cause  the  same  to  be  printed  with  the  laws  of  the  next  legisla- 


OF  COUNTY  AND  TOWN  OFFICERS.  515 

ture  after  such  division  takes  place,  and  cause  the  same  to  be 
pubhshed  in  the  same  manner  as  other  laws  are  published. 

Notice  in  writing  of  such  intended  application,  subscribed  by 
not  less  than  twelve  freeholders  of  the  town  or  towns  to  be 
affected,  must  be  posted  in  five  of  the  most  public  places  in 
each  of  the  towns  to  be  aflected  thereb}'-,  four  weeks  next  pre- 
vious to  such  application  to  the  board  of  supervisors,  and  a  copy 
of  such  notice  must  also  be  published  for  at  least  six  weeks 
successively  immediately  before  the  meeting  of  the  board  at 
which  the  application  is  to  be  made,  in  all  the  newspapers 
printed  in  the  county,  not  exceeding  three  in  number. 

Whenever  the  board  of  supervisors  erect  a  new  town  in  any 
county,  they  must  designate  the  name  thereof,  tlie  time  and 
place  of  holding  the  first  annual  town  meeting  therein,  and 
three  electors  of  such  town  whose  duty  it  is  to  preside  at  such 
meeting,  appoint  a  clerk,  open  and  keep  the  polls,  and  exercise 
the  same  powers  as  Justices  of  the  Peace,  when  presiding  at 
town  meetings  ;  and  in  case  any  of  the  said  electors  refuse  or 
neglect  to  serve,  the  electors  of  the  town,  present  at  the  meeting, 
have  power  to  substitute  some  elector  of  the  town  for  each  one 
so  refusing  or  neglecting  to  serve.  Notice  of  the  time  and  place 
of  the  town  meeting,  signed  by  the  chairman  or  clerk  of  the 
board  of  supervisors,  must  be  posted  in  four  of  the  most  public 
places  of  the  town  by  the  persons  designated  to  preside  at  the 
town  meeting,  at  least  fourteen  days  before  holding  the  same. 
They  must  also  fix  the  place  for  holding  the  first  town  meeting 
in  the  town  or  towns  from  which  the  new  town  is  taken.  It  is 
provided,  however,  that  nothing  in  the  act  shall  affect  the  rights 
or  abridge  the  term  of  office  of  any  Justice  of  the  Peace,  or  other 
town  officer,  in  any  such  town,  whose  term  of  office  has  not 
expired. 

The  board  of  supervisors  has  power  and  is  authorized — 1. 
At  any  meeting  thereof,  lawfully  assembled,  to  purchase  for  the 
use  of  the  county  any  real  estate  necessary  for  the  erection  of 
buildings,  and  for  the  support  of  the  poor  of  such  county.  2. 
To  purchase  any  real  estate  necessary  for  a  site  for  any  court 
house,  jail,  clerk's  or  surrogate's  office,  or  other  public  county 
buildings  in  said  county.  3.  To  fix  upon  and  determine  the 
site  of  any  such  buildings,  where  they  are  already  located.  4. 
To  authorize  the  sale  or  leasing  of  any  real  estate  belonging  to 
r.-.zh  co'inty,  and  nrescribe  the  mode  in  which  any  conveyance 


516  OF  COUNTY  AND  TOWN  OFFICERS. 

shall  be  made.  5.  To  remove  or  designate  a  new  site  for  any 
county  buildings,  when  such  removal  shall  not  exceed  one 
mile.  6.  To  cause  to  be  erected  necessary  buildings  for  poor 
houses,  jails,  clerk's  and  surrogate's  offices,  or  other  county 
buildings,  and  prescribe  the  manner  of  erecting  the  same.  7. 
To  cause  to  be  collected,  by  tax  upon  such  county,  any  sum  of 
money  to  erect  any  of  the  buildings  mentioned  above,  not  ex- 
ceeding .$5000  in  any  one  year.  8.  To  borrow  money  for  the 
use  of  such  county,  to  be  expended  in  the  purchase  of  any  real 
estate,  or  for  the  erection  of  any  such  buildings,  and  to  provide 
for  the  payment  thereof,  with  interest,  by  tax  upon  such  counter, 
within  ten  years  from  the  date  of  such  loan,  in  yearly  instal- 
ments, or  otherwise.  9.  To  authorize  any  town  in  such  county, 
by  a  vote  of  such  town,  to  borrow  any  sum  of  money,  not  ex- 
ceeding $4000  in  any  one  year,  to  build  or  repair  any  roads  or 
bridges  in  such  town,  and  prescribe  the  time  for  the  payment  of 
the  same,  which  time  must  be  within  ten  years,  and  for  assess- 
ing the  principal  and  interest  thereof  upon  such  town.  10.  To 
abolish,  or  revive,  the  distinction  between  the  town  and  county 
poor  of  such  county.  11.  To  fix  the  time  and  place  of  holding 
their  annual  meetings.  12.  To  extend  and  determine  by  reso- 
lution, at  their  annual  meeting,  the  time  when  each  collector  in 
said  county  shall  make  return  to  the  county  treasurer  ;  but  such 
time  can,  in  no  case,  extend  beyond  the  first  day  of  March, 
then  next.  13.  To  make  such  laws  and  regulations  as  the)'- 
may  deem  necessary,  and  provide  for  the  enforcing  of  the  same, 
for  the  destruction  of  wild  beasts,  thistles,  and  other  noxious 
weeds,  to  prevent  the  injury  and  destruction  of  sheep  by  dogs, 
and  to  levy  and  enforce  the  collection  of  any  tax  upon  dogsj 
and  to  direct  the  application  of  such  tax,  and  to  provide  for  the 
protection  of  all  kinds  of  game,  of  shell,  and  other  fish,  within 
the  waters  of  their  respective  counties  ;  and  all  laws  of  this 
state  now  existing  in  relation  to  preserving,  or  destroying,  killing 
and  taking  v/ild  beasts,  or  birds,  fish,  eels,  and  shell  fish,  are 
hereby  repealed,  such  repeal  to  take  cflect  on,  the  \st  day  of 
Jantuuij^  ill  the  y<:ar  1S5().  14.  To  re(|uirc  any  county  oiliccr, 
or  any  (jllicer  whose  salary  is  paid  hy  the  county,  to  make  a 
report  under  oath,  to  thiMn,  on  any  subj(,>cte  or  matters  connected 
with  ill';  duties  of  their  oliiees  ;  ami  the  .s;ii(l  dliiccMS  are  retjui- 
cd  to  niak<!  such  rejjort  whenever  called  upon  hy  the  resolution 
j)f  ayy  such  board  ;  and  if  any  ollicer  neglect  or  refuse  to  make 


OF  COUNTY  AND  TOWN  OFFICERS.  517 

any  such  report  he  will  be  deemed  guilty  of  a  misdemeanor. 
None  of  the  foregoing  powers  can  be  exercised  except  by  a  vote 
of  a  majority  of  all  the  members  elected  in  the  county,  nor  can 
such  power  be  exercised  under  the  fifth,  tenth,  and  thirteenth 
of  the  foregoing  subdivisions,  without  a  vote  of  two-thirds  of 
all  the  members  elected  to  such  boards. 

It  is  provided,  that  boards  of  supervisors  shall  also  have 
power,  within  their  respective  counties,  to  change  the  location 
of  court  houses,  jails,  clerk's  offices,  surrogate's  and  treasurer's 
offices,  or  other  public  buildings,  when  the  distance  shall  not 
exceed  one  mile,  upon  notice  having  been  given,  signed  by  at 
least  twelve  freeholders,  for  six  successive  weeks,  immediately 
before  any  meeting  of  such  board,  and  specifying  the  new  site 
in  some  newspaper  printed  in  the  county ;  but  the  foregoing 
power  for  the  removal  of  public  buildings,  where  the  distance 
exceeds  one  mile,  cannot  be  exercised,  unless  at  the  next  annual 
meeting  after  the  publication  of  the  aforesaid  notice,  a  resolution 
is  passed  to  change  the  site  of  the  building  or  buildings  to  the 
place  mentioned  in  the  notice,  by  a  vote  of  two-thirds  of  all  the 
members  elected,  and  then  only  upon  said  resolution  being 
published  for  at  least  six  v/eeks  successively  in  some  newspaper 
printed  in  the  county,  immediately  previous  to  the  next  annual 
meeting  of  the  supervisors,  when  by  a  vote  of  two-thirds  of  all 
the  members  elected,  the  resolution  being  again  passed,  must  go 
into  effect. 

Every  resolution  of  any  board  of  supervisors,  passed  in  pur- 
suance of  the  foregoing  provisions,  must  be  signed  by  the  chair- 
man and  clerk  of  the  board,  and  be  recorded  in  the  book  of 
miscellaneous  records  of  the  county. 

The  comptroller  is  authorized  to  loan  to  any  of  the  towns  or 
counties  of  the  state,  any  money  in  the  treasury  belonging  to 
the  capital  of  the  common  school  fund,  as  is  authorized  to  be 
borrowed  by  any  county  or  town  whenever  application  is  made 
to  him  by  the  treasurer  of  such  county.  When  such  moneys 
are  loaned  to  such  county,  the  treasurer  thereof  must  execute 
his  official  bond  for  the  payment  thereof,  and  when  loaned  to 
any  town,  the  supervisor  thereof  is  required  to  execute  his 
official  bond,  in  like  manner. 


If  any  supervisor  refuse  or  neglect  to  perform  any  of  the 


518  OF  COUNTY  AND  TOWN  OFFICER?. 

duties  required  of  him  by  law,  as  a  member  of  the  board  of 
supervisors,  for  every  such  offence,  he  will  forfeit  the  sum  of 
two  hundred  and  fifty  dollars.     (1  R.  S.  422,  sec.  31.) 

The  mayor,  recorder,  and  aldermen  of  the  city  of  New  York, 
are  the  supervisors  of  the  city  and  county  of  New  York.     (Id.) 

13   Toiv7i  Clerk. 

Every  person  chosen  or  appointed  to  the  office  of  town  clerk, 
is  required,  before  he  enters  on  the  duties  of  his  office,  and 
within  ten  days  after  he  has  been  notified  of  his  election  or  ap- 
pointment, to  take  and  subscribe,  before  some  Justice  of  the 
Peace,  or  commissioner  of  deeds,  the  oath  of  office  prescribed 
by  the  constitution.     (1  R.  S.  395,  sec.  29.) 

The  town  clerk  of  each  town  in  the  state,  has  the  custody  of 
all  the  records,  books,  and  papers  of  the  town,  and  he  must 
duly  file  all  certificates  of  oaths  and  other  papers  required  by 
law  to  be  filed  in  his  office.    (Id.  400,  sec.  11.) 

He  must  transcribe,  in  the  book  of  records  of  his  town,  the 
minutes  of  the  proceedings  of  every  town  meeting  held  therein  ; 
and  he  must  enter  in  such  book,  every  order  or  direction, 
and  all  rules  and  regulations  made  by  any  such  town  meet- 
ing.    (Sec.  12.) 

He  must  deliver  to  the  supervisor,  before  the  annual  meeting 
of  the  board  of  supervisors  of  the  county,  in  each  year,  certified 
copies  of  all  entries  of  votes  for  raising  money,  made  since  the 
last  meeting  of  the  board  of  supervisors,  and  recorded  in  the 
town  book.     (Sec.  13.) 

The  town  clerks,  immediately  after  the  qualifying  of  any 
constables  chosen,  or  appointed,  in  their  respective  towns,  are 
required  to  return  to  the  clerks  of  their  respective  counties,  the 
names  of  such  constables.  If  any  town  clerk  wilfully  omit  to 
make  such  return,  such  omission  will  be  deemed  a  misde- 
meanor, and,  on  conviction,  the  person  ofl'ending  must  be  ad- 
judged to  pay  a  fine  not  exceeding  ten  dollars.  (Sees.  14 
and  15.) 

Copies  of  all  papers  duly  filed  in  the  office  of  the  town  clerk, 
and  transcripts  from  tlie  book  of  records  certified  by  him,  will 
be  evidence  in  all  courts,  in  like  manner  as  if  the  originals  were 
produced.     (Sec.  10.) 

The  town  clerk  is  re([uired,  within  ten  days  after  every  town 


OF  COUNTY  AND  TOWN  OFFICERS.  619 

meeting,  to  transmit  to  each  person  elected  to  any  town  ofFice, 
whose  name  shall  not  have  been  entered  on  the  poll  list,  as 
a  voter,  a  notice  of  his  election.     (1  R.  S.  393,  sec.  16.) 

The  town  clerk,  by  virtue  of  his  office,  is  the  clerk  of  the 
town  superintendents  of  common  schools,  in  each  town  ;  and  it 
is  his  duty — 

1.  To  receive  and  keep  all  reports  made  to  the  town  superin- 
tendents from  the  trustees  of  school  districts,  and  all  the  books 
and  papers  belonging  to  the  town  superintendents,  and  to  file 
them  in  his  office.  2.  To  attend  all  meetings  of  the  town  su- 
perintendents, and  to  prepare,  under  their  direction,  all  their  re- 
ports, estimates,  and  apportionments  of  school  money,  and  to 
record  the  same,  and  their  other  proceedings,  in  a  book  to  be 
kept  for  that  purpose.  3.  To  receive  all  such  communications 
as  may  be  directed  to  him  by  the  superintendent  of  common 
schools,  and  dispose  of  the  same  in  the  manner  directed  therein. 
4.  To  transmit  to  the  clerk  of  the  county,  all  such  reports  as 
may  be  made  for  such  clerk  by  the  town  superintendents.  5. 
To  call  together  the  town  superintendents,  upon  receiving  notice 
from  the  county  clerk,  that  they  have  not  made  their  annual  re- 
port, for  the  purpose  of  making  such  report.  And  generally,  to 
do,  and  execute,  all  such  things  as  belong  to  his  office,  and  may 
be  required  of  him  by  the  town  superintendents.  (Laws,  1847, 
eh.  480.) 

Town  clerks  must  be  allowed,  in  their  accounts,  for  all  pos- 
tages actually  paid  by  them  on  communications  from  town  su- 
perintendents of  common  schools,  or  from  trustees  of  school 
districts ;  and  it  is  their  duty  to  transmit  to  the  superintendent 
the  names  of  the  clerks  of  the  several  school  districts,  to  distri- 
bute communications  from  the  superintendent  to  the  clerks  of 
the  school  district,  and  to  receive  and  transmit  to  the  superin- 
tendent such  returns  and  papers  as  he  shall,  by  regulation, 
require  to  be  transmitted  by  them.     (Id.) 

Whenever  any  logs,  timber,  boards,  or  plank,  in  rafts,  or 
otherwise,  shall  have  been  drifted  upon  any  island  in  any  of  the 
waters  within  this  state,  or  upon  the  bank  or  shore  of  any  such 
waters,  and  the  owner  of  such  lumber  shall  not,  within  three 
months  from  and  after  the  time  when  such  lumber  shall  have 
been  so  drifted,  take  the  same  away,  it  is  the  duty  of  the  owner 
or  possessor  of  the  land  on  which  the  same  may  have  been 
drifted,  to  deliver  to  the  clerk  of  such  city  or  town,  a  note,  in 


520  OF  COUNTY  AND  TOWN  OFFICERS. 

writing,  signed  by  him,  describing,  as  near  as  may  be,  such 
lumber,  together  with  the  quantity,  and  mark  or  marks  there- 
of, and  the  place  where  the  same  is  lodged.  (1  R.  S.  877, 
sees.  1  and  4.) 

It  is  the  duty  of  the  clerk  to  whom  any  such  note  in  writing 
is  deUvered,  to  file  the  same  in  his  office,  and  to  produce  the 
same  for  the  inspection  of  any  person  who  requests  it.  (Sec.  5.) 
The  person  delivering  the  note,  may  detain  the  lumber  descri- 
bed therein,  until  the  owner  appears  and  pays  the  damages,  if 
any,  which  such  person  is  entitled  to  demand  ;  which  damages 
must  be  settled,  in  case  of  disagreement,  by  the  fence  viewers  of 
the  town.     (Sec.  6.) 

If  no  person,  within  six  months  after  the  filing  of  such  note 
in  writing,  claim  the  lumber  described  therein,  it  is  the  duty  of 
the  owner  or  possessor  of  the  land  whereon  the  same  has  drift- 
ed, to  give  notice  thereof,  in  writing,  to  the  clerk  of  the  city  or 
town,  who  must  cause  such  lumber  to  be  sold,  at  public  auction, 
after  giving  at  least  twenty  days  previous  notice  of  such  sale, 
by  advertisement,  to  be  posted  in  at  least  three  of  the  most  pub- 
lic places  in  such  city  or  town.     (Sec.  7.) 

The  clerk  making  the  sale  will  be  entitled  to  the  same  fees 
therefor,  as  are  allowed  to  officers  making  sales  on  executions  is- 
sued out  of  Justices'  Courts.  The  moneys  arising  from  the  sale, 
must  be  applied — 

1.  To  the  payment  of  such  fees  ;  and  2,  to  the  payment  of 
the  damages  which  the  owner  or  possessor  of  the  land  shall 
have  sustained,  by  reason  of  such  lumber,  and  which  may  ac- 
crue in  the  removal  thereof.  3.  The  surplus,  if  any,  must  be 
paid  by  the  clerk  of  the  city  or  town  to  the  treasurer  of  the 
county  wherein  such  lumber  shall  have  been  found,  for  the  use 
of  the  poor.     (Sec.  8.) 

The  expenses  incurred  by  the  state  in  printing  and  transmit- 
ting any  list  of  lands  liable  to  be  sold  for  taxes,  and  in  publish- 
ing notices  of  sale,  are  re(|uired  to  be  charged  on  the  lands  men- 
tioned in  sucli  list.  The;  county  treasurers  must  retain,  in 
their  ofiicos,  five  of  llie  c()j)i(;s  transmitted  to  them,  and  cause 
the  remaining  copi(!s  to  bo  delivered  to  the  town  clerks.  Every 
town  clerk  to  whom  such  copies  shall  be  delivered,  is  required 
to  give  notice,  at  the  opening  of  every  town  meeting  for  the 
election  of  tf)wn  ollicers,  that  lists  of  all  lands  advertised  for  sale 
for  taxes,  by  the  comptroller,  arc  deposited  in  his  oliice,  and  tha 


OF  COUNTY  AND  TOWN  OFFICERS.  521 

they  may  be  there  seen  and  examined,  at  all  reasonable  hours, 
free  of  expense.     (1  R.  S.  462,  sees.  G6,  67,  and  69.) 

It  is  made  the  duty  of  the  town  clerk,  at  least  eight  days  bo- 
fore  the  holding  of  any  special  town  meeting,  to  cause  notices 
thereof,  under  his  hand,  to  be  posted  at  four  or  more  of  the  most 
public  places  in  the  town  ;  which  notices  must  specify  the  time, 
place,  and  purposes  of  such  meeting.     (1  R.  S.  390,  sec.  16.) 

Whenever  any  person,  at  any  time,  have  any  strayed  horse 
upon  his  enclosed  land,  or  between  the  first  day  of  November, 
in  any  year,  and  the  first  day  of  April  thereafter,  have  any 
strayed  neat  cattle  or  sheep,  upon  his  enclosed  lands,  such  per- 
son must,  within  ten  days  after  the  coming  of  any  such  stray 
thereon,  deliver  to  the  clerk  of  the  town  within  which  such 
lands  lie,  a  note,  in  writing,  containing  the  name  and  place 
of  abode  of  such  person,  and  the  age,  color,  and  marks,  na- 
tural and  artificial,  of  each  stray,  as  near  as  may  be.  (Id. 
401,  sec.  17.) 

If  any  person  upon  whose  enclosed  lands  any  such  neat  cat- 
tle, horses,  or  sheep  come,  neglect  to  deliver  such  note,  in 
Avriting,  to  the  town  clerk,  within  the  time  required,  he  will  be 
precluded  from  all  claim  to  compensation  for  keeping  such 
strays.     (Id.  sec.  18.) 

FORM    OF    NOTE    TO  BE    DELIVERED    TO    TOWN    CLERK. 

To  James  Gary,  Clerk  of  the  Town  of  Chenango. 

Please  take  notice,  that,  on  or  about  the  fith  day  of  July,  in- 
stant, a  brindle  heifer,  of  the  age  of  two  years,  or  thereabouts, 
with  a  star  in  her  forehead,  and  part  of  the  left  horn  broken  off, 
strayed  upon  my  enclosed  land  in  the  town  of  Chenango,  and 
now  remains  thereupon  ;  and  that  I  reside  in  the  village  of 
Binghamton,  in  said  town. 

Dated  July  8ih,  1849. 

Henry  West. 

The  town  clerk,  on  the  receipt  of  every  such  note,  is  required 
to  enter  the  same  at  large,  in  a  book,  to  be  provided  by  him  for 
that  purpose ;  for  which  entry  he  is  entitled  to  receive  six  cents 
each,  for  all  neat  cattle  and  horses,  and  three  cents  for  each 
sheep,  to  be  paid  by  the  person  delivering  the  note.     (Id.  sec. 

) 
The  book  in  which  such  entries  are  made,  must  always  be 


522  OF  COUNTY  AND  TOWN  OFFICERS. 

kept  open  to  inspection ;  and  no  fee  can  be  taken  by  the  clerk 
for  any  search  therein.     (Id.  sec.  20.) 

The  person  delivering  the  note,  is  entitled  to  receive  nine 
cents  each,  for  all  neat  cattle  and  horses,  and  three  cents  for 
each  sheep  described  in  the  note ;  and  he  may  detain  the  strays 
until  the  owner  appear  and  pay  such  fees,  together  with  tlie  fees 
paid  or  due  the  clerk,  and  all  reasonable  charges  for  keeping  the 
strays  ;  such  charges  being  first  ascertained  by  two  of  the  fence 
viewers  of  the  town,  to  be  selected  by  the  person  claiming  the 
same,  in  case  he  and  the  owner  of  the  stray  cannot  otherwise 
agree.     (Id.  sec.  21.) 

The  following  act  in  relation  to  the  registry  of  chattel  mort- 
gages by  town  clerks  was  passed  by  the  last  legislature  :  (Laws, 
1849,  ch.  69.) 

(Sec.  1.)  It  shall  be  the  duty  of  the  clerks  of  the  several  towns 
and  counties  in  this  state,  in  whose  offices  chattel  mortgages  are 
by  law  required  to  be  filed,  to  provide  proper  books  at  the  ex- 
pense of  their  respective  towns,  in  which  the  names  of  all  par- 
ties to  every  mortgage  or  instrument  intended  to  operate  as  a 
mortgage  of  goods  and  chattels,  hereafter  filed  by  them  or  either 
of  them,  shall  be  entered  in  alphabetical  order,  under  the  head 
of  mortgagors  and  mortgagees,  in  each  of  such  books  respec- 
tively. 

(Sec.  2.)  It  shall  be  the  duty  of  said  several  clerks  to  number 
every  such  mortgage  or  copy  so  filed  in  said  office,  by  endorsing 
the  number  on  the  back  thereof,  and  to  enter  such  number  in  a 
separate  column,  in  the  books  in  which  such  mortgages  shall  be 
entered,  opposite  to  the  name  of  every  party  thereto,  also  the 
date,  the  amount  secured  thereby,  when  due,  and  the  date  of 
the  filing  of  every  such  mortgage. 

(Sec.  3.)  The  said  several  clerks  for  services  under  this  act 
shall  be  entitled  to  receive  therefor,  the  following  fees  ;  for  filing 
every  such  mortgage,  or  copy,  six  cents  ;  for  entering  the  same, 
in  books,  as  aforesaid,  six  cents. 

Whenever  the  term  of  ofllcc  of  any  town  clerk  or  supervisor 
expires,  and  another  person  is  elected  or  appointed  to  such  office, 
it  is  the  duty  of  such  succeeding  town  clerk  or  supervisor  im- 
mediately after  he  shall  have  entered  on  the  duties  of  his  office, 
to  demand  of  his  predecessor  all  the  records,  books,  and  papers, 
under  his  control  belonging  to  such  office.  (1  II.  S.  410,  sec.  9.) 
If  either  of  the  foregoing  officers  resign,  and  another  person  is 


OF  COUNTY  AND  TOWN  OFFICERS.  523 

elected  or  appointed  in  his  stead,  tlie  person  so  elected  or  ap- 
pointed must  make  such  demand  of  the  person  so  resigning. 
(Sec.  10.) 

It  is  the  duty  of  every  person  so  going  out  of  office,  whenever 
required  pursuant  to  statute,  to  deliver  upon  oath  all  records, 
books,  and  papers,  in  his  possession,  or  under  his  control,  belong- 
ing to  the  office  held  by  him  ;  which  oath  may  be  administered 
by  the  officer  to  whom  such  delivery  is  made.     (Sec.  11.) 

Upon  the  death  of  either  of  the  above  mentioned  officers,  the 
successors  or  successor  of  such  officer,  must  make  the  demand 
as  above  provided,  of  the  executors  or  administrators  of  such  de- 
ceased officer ;  and  it  is  the  duty  of  such  executor  or  adminis- 
trator, to  deliver  upon  the  like  oath,  all  records,  books,  and 
papers,  in  their  possession,  or  under  their  control,  belonging  to 
the  office  held  by  their  testator  or  intestate.     (Sec.  12.) 

If  any  person  so  going  out  of  office,  or  his  executors  or  admin- 
istrators, refuse  or  neglect,  when  lawfully  required,  to  deliver 
such  records,  books,  or  papers  he  will  forfeit  to  the  town,  for 
every  such  refusal  or  neglect,  the  sum  of  two  hundred  and  fifty 
dollars.     (Sec.  13.) 

14.  Assessors. 

There  are  three  assessors  in  each  town,  one  of  whom  is  elect- 
ed each  year  at  the  annual  town  meeting.  They  hold  their 
office  for  the  term  of  three  years.  (1  R.  S.  388,  sec.  7.)  If  any 
person  chosen  or  appointed  to  the  office  of  assessor,  refuse  to 
serve,  he  will  forfeit  to  the  town  the  sum  of  fifty  dollars.  (1  R. 
S.  397,  sec.  44.)  A  quaker  or  reputed  quaker,  however,  chosen 
or  appointed  to  the  office  of  assessor  will  not  be  liable  to  such 
penalty,  if  within  three  days  after  receiving  notice  of  his  elec- 
tion or  appointment,  he  affirm  that  he  has  conscientious  scru- 
ples, about  executing  the  duties  of  the  office.  Such  affirma- 
tion must  be  made  before  some  Justice  of  the  Peace  of  the  town, 
who  is  required,  without  reward,  to  certify  in  writing,  the  day 
and  year  when  the  same  is  taken,  and  deliver  such  certificate 
to  the  person  by  whom  the  affirmation  is  made ;  and  such  per- 
son within  eight  days  thereafter,  must  cause  the  certificate  to  be 
filed  in  the  office  of  the  town  clerk.  (1  R.  S.  397,  sec.  46,  and 
47.) 

The  assessors  are,  by  virtue  of  their  offices,  fence  viewers  of 
their  town.     (Id.  388,  sec.  8.) 


524  OF  COUNTY  AND  TOWN  OFFICERS. 

It  is  the  duty  of  the  assessors,  between  the  first  of  May  and 
the  first  of  July  in  each  year,  to  proceed  to  ascertain,  by  dihgent 
inquiry,  the  names  of  all  the  taxable  inhabitants  in  their  re- 
spective towns  or  wards,  and  also  all  the  taxable  property,  real 
or  personal,  within  the  same.  For  the  sake  of  convenience,  they 
may  divide,  by  mutual  agreement,  each  town  or  ward  into  con- 
venient assessment  districts,  not  exceeding  the  number  of  as- 
sessors in  such  town  or  ward.     (1  R.  S.  444,  sec.  7.) 

They  are  required  to  prepare  an  assessment  roll,  divided  into 
four  columns.  In  the  first  column  they  must  set  down,  accord- 
ing to  the  best  information  in  their  power,  the  names  of  all  the 
taxable  inhabitants  in  the  town  or  ward  ;  in  the  second  column, 
the  quantity  of  land  to  be  taxed  to  each  person  ;  in  the  third 
column,  the  full  value  of  such  land  ;  in  the  fourth  column,  the 
full  value  of  all  the  taxable  p'rsonal  property  owned  by  such 
person,  after  deducting  the  just  debts  owing  by  him.     (Sec.  9.) 

Where  a  person  is  assessed  as  trustee,  guardian,  executor  or 
administrator,  he  must  be  assessed  as  such,  with  the  addition  to 
his  name  of  his  representative  character,  and  such  assessment 
must  be  carried  out  in  a  separate  line  from  his  individual  assess- 
ment ;  and  he  must  be  assessed  for  the  value  of  the  real  estate 
held  by  him  in  such  representative  character,  at  the  full  value 
thereof,  and  for  the  personal  property  held  by  him  in  such  re- 
presentative character,  deducting  from  such  personal  property 
the  just  debts  due  from  him  in  such  representative  character. 
(Sec.  10.) 

The  lands  of  non-residents  must  be  designated  in  the  same 
assessment  roll,  but  in  a  part  separate  from  the  other  assess- 
ments. If  the  land  to  be  assessed  be  a  tract  which  is  subdivided 
into  lots,  or  be  part  of  a  tract  which  is  so  subdivided,  the  assess- 
ors must  proceed  as  follows  :  1.  They  must  designate  it  by  its 
name,  if  known  by  one — or  if  not  distinguished  by  a  name,  or 
the  name  is  unknown,  they  must  state  by  what  other  lands  it  is 
bounded  ;  2.  If  they  can  obtain  correct  information  of  the  sub- 
divisions, they  must  put  down  in  their  assessment  rolls,  and  in 
a  first  cohimn,  all  the  unoccupied  lots  in  their  town  or  ward, 
owned  by  non -residents,  by  their  numbers  alone,  and  without 
the  names  of  tlieir  owners,  beginning  at  the  lowest  number,  and 
proceeding  in  numerical  order  to  the  highest;  3.  In  a  second 
cohunn,  and  opposite  to  the  number  of  each  lot,  they  must  set 
down  til*;  quantity  of  land  therein  liable  to  taxation;  4.  In  a 


OF  COUWTY  AND  TOWN  OFFICERS.  525 

third  column,  and  opposite  to  the  quantity,  they  must  set  down 
the  vahuition  of  such  quantity  ;  5.  If  such  quantity  be  a  full  lot, 
it  nnist  be  designated  by  the  number  alone ;  if  it  be  a  part  of  a 
lot,  t^ie  part  must  be  designated  by  boundaries,  or  in  some  other 
way  by  which  it  may  be  known.  If  the  land  to  be  assessed  be 
a  tract  which  is  not  subdivided,  or  if  its  subdivisions  cannot  be 
ascertained  by  the  assessors,  they  must  proceed  as  follows  :  1. 
They  must  enter  in  their  roll  the  name  or  boundaries  thereof  as 
above  directed,  and  certify  in  the  roll  that  such  tract  is  not  sub- 
divided, or  that  they  cannot  obtain  correct  information  of  the 
subdivisions,  as  the  case  may  be  ;  2.  They  must  set  down,  in 
the  proper  column,  the  quantity  and  valuation  as  above  direct- 
ed ;  3.  If  the  quantity  to  be  assessed  be  the  whole  tract,  such  a 
description,  by  its  name  or  boundaries,  will  be  sufficient ;  but  if 
a  part  only  is  liable  to  taxation,  that  part,  or  the  part  not  liable, 
must  be  particularly  described  ;  4.  If  any  part  of  such  tract  be 
settled  and  occupied  by  a  resident  of  the  town  or  ward,  the  as- 
sessors are  required  to  except  such  part  from  their  assessment  of 
the  whole  tract,  and  to  assess  it  as  other  occupied  lands  are  as- 
sessed;  and  if  they  cannot  otherwise  designate  such  parts,  they 
must  notify  the  supervisor  of  the  town,  who  must  cause  a  sur- 
vey and  two  manuscript  maps  to  be  made,  for  the  purpose  of  as- 
certaining the  situation  and  quantity  of  every  such  occupied 
part ;  5.  One  of  the  maps  must  be  delivered  by  the  supervisor 
to  the  county  treasurer,  to  be  by  him  transmitted  to  the  comp- 
troller, and  the  other  must  be  delivered,  in  like  manner,  to  the 
assessors  ;  6.  The  assessors  must  then  complete  the  assessment 
of  the  tract,  and  deposite  the  map  in  the  town  clerk's  office  for 
the  information  of  future  assessors.  (1  R.  S,  445,  sees.  11,  12, 
and  13. 

Whenever  it  is  deemed  necessary;  by  the  assessors  of  any 
town,  to  have  an  actual  survey  made  to  ascertain  the  quantity 
of  any  lot  or  tract  of  non-resident  lands  which  is  divided  by  the 
town  line,  they  must  notify  the  supervisor,  who  is  required  to 
cause  the  necessary  surveys  to  be  made  at  the  expense  of  the 
town.     (1  R.  S.  445,  sec.  14.) 

If  any  person  whose  real  or  personal  estate  is  liable  to  taxa- 
tion, at  any  time  before  the  assessors  have  completed  their  as- 
sessments, makes  affidavit  that  the  value  of  his  real  estate  does 
not  exceed  a  certain  sum  to  be  specified  in  such  affidavit ;  or 
that  the  value  of  the  personal  estate  owned  by  him,  after  de- 


526  OF  COUNTY  AND  TOWN  OFFICERS. 

ducting  his  just  debts,  and  his  property  invested  in  the  stock  of 
incorporated  companies  hable  to  taxation  on  their  capital,  does 
not  exceed  a  certain  sum,  to  be  specified  in  the  affidavit,  it  is 
the  duty  of  the  assessors  to  vakie  such  real  or  personal  estate,  or 
both,  as  the  case  may  be,  at  the  sums  specified  in  the  affidavit. 
(Sec.  15.) 

If  any  trustee,  guardian,  executor,  or  administrator,  specify 
by  affidavit  the  value  of  the  property  possessed  by  him,  or  un- 
der his  control  by  virtue  of  sucli  trust,  after  deducting  the  just 
debts  due  from  him,  and  the  stock  held  by  him  in  incorporated 
companies  Hable  to  taxation,  in  that  capacity,  the  assessors  are 
required,  in  like  manner,  to  value  the  same  at  the  sum  specified 
in  the  affidavit.     (Sec.  16.) 

All  real  and  personal  estate  liable  to  taxation,  the  value  of 
which  shall  not  have  been  specified  by  the  affidavit  of  the  per- 
son taxed,  must  be  estimated  by  the  assessors  at  its  full  value, 
as  they  would  appraise  the  same  in  payment  of  a  just  debt  due 
from  a  solvent  debtor,  except  where  the  assessors  are  specially 
required  by  law  to  observe  a  different  rule.     (Sees.  17  and  18.) 

The  assessors  are  required  to  complete  the  assessment  rolls 
on  or  before  the  first  day  of  August  in  every  year,  and  to  make 
out  one  fair  copy,  to  be  left  with  one  of  their  number.  They 
must  also  cause  notices  thereof  to  be  forthwith  put  up  at  three 
or  more  public  places  in  their  town  or  ward.     (Sec.  19.) 

The  notices  must  set  forth  that  the  assessors  have  completed 
their  assessment  roll,  and  that  a  copy  thereof  is  left  with  one 
of  their  number,  to  be  designated  in  such  notice,  at  some  place 
to  be  specified  therein,  where  the  same  may  be  seen  and  exa- 
mined by  any  inhabitants  of  the  town  or  ward  during  twenty 
days ;  and  that  the  assessors  will  meet  on  a  certain  day  at  the 
expiration  of  such  twenty  days,  and  at  a  place  to  be  specified 
in  the  notice,  to  review  their  assessments,  on  the  application  of 
any  person  conceiving  himself  aggrieved.  (1  R.  S.  446, 
sec.  20.) 

FORM    OF    NOTICE. 

To  all  whom  it  may  concern  :  Notice  is  hereby  given  that  the 
assessors  of  the  town  of  Chenango  have  completed  their  assess- 
ment roll  for  the  present  year,  and  that  a  copy  thereof  is  left 
with  the  undersigned  John  Eldridge,  at  his  dwelling  house  in 


OF  COUNTY  AND  TOWN  OFFICERS.  527 

Binghamtou,  where  the  same  may  be  seen  and  examined  by 
any  of  the  inhabitants  of  said  town,  during  twenty  days  from 
this  date  ;  and  that  the  said  assessors  will  meet  at  the  hotel  of 
Hiram  Way,  in  said  town,  on  the  21st  day  of  August  instant,  at 
two  o'clock  in  the  afternoon,  to  review  their  assessments,  on  the 
application  of  any  person  conceiving  himself  aggrieved. 
Dated  August  1st,  1849. 

John  Eldridge,         ^ 
Phineas  Tompkins,  >  Assessors. 
Morgan  Lewis,  j 

The  assessor  with  whom  the  foregoing  notice  is  left,  is  re- 
quired to  submit  the  same,  during  the  twenty  days,  to  the  in- 
spection of  all  persons  who  apply  for  that  purpose.     (Id.  sec.  21.) 

The  assessors  must  meet  at  the  time  and  place  specified  in 
the  notice  ;  and  on  the  application  of  any  person  conceiving 
himself  aggrieved  by  their  assessment,  must  review  such  assess- 
ment ;  and  when  the  person  objecting  thereto  shall  not  have 
previously  made  affidavit  concerning  the  value  of  his  property, 
the  assessors  are  required,  on  the  affidavit  of  such  person,  to  re- 
duce their  assessments  to  the  sum  specified  in  the  affidavit.  (Id. 
sec.  22.) 

If  the  person  objecting  to  the  assessment  can  show,  by  other 
proof  than  his  own  affidavit,  to  the  satisfaction  of  the  assessors, 
or  of  a  majority  of  them,  that  such  assessment  is  erroneous,  the 
assessors  must  review  and  alter  the  same,  without  requiring  any 
affidavits.     (Id.  sec.  23.) 

Where  any  person  in  possession  of  personal  property  liable  to 
taxation,  makes  an  affidavit  that  such  property,  or  any  part 
thereof,  specifying  what  part,  is  possessed  by  him  as  agent  for 
the  owner,  and  discloses  in  such  affidavit  the  name  and  resi- 
dence of  the  owner,  the  assessors,  if  it  appear  that  such  owner 
is  liable  to  be  taxed,  must  not  include  such  personal  estate  in 
the  assessment  of  the  property  of  the  possessor.     (Sec.  24.) 

The  affidavits  specified  above  must  be  made  before  the  as- 
sessors, or  one  of  them,  either  of  whom  is  authorized  to  admin- 
ister an  oath  for  that  purpose  ;  and  the  assessors  must  cause  all 
such  affidavits  to  be  filed  in  the  office  of  the  town  clerk.  (Sec. 
25.) 

If  no  objection  is  made  to  their  assessments,  or  immediately 
after  the  assessors  shall  have  disposed  of  the  objections,  the  as- 


528  OF  COUNTY  AND  TOWN  OFFICERS. 

sessors,  or  a  majority  of  them,  are  required  to  sign  the  assess- 
ment roll,  and  attach  thereto  a  certif^cate,^which  must  also  be 
signed  by  them.     (Sec.  26.) 

FORM    OF    assessor's    CERTIFICATE. 

ToiC'ii  of  Chenango,  ss. — We  do  severally  certify  that  we 
have  set  down  in  the  above  assessment  roll  all  the  real 
estate  situated  in  the  town  of  Chenango,  according  to  our 
best  information ;  and  that,  with  the  exception  of  those  cases 
in  which  the  value  of  the  real  estate  has  been  sworn  to  by 
the  owner  or  possessor  thereof,  we  have  estimated  the  value 
of  the  said  real  estate  at  the  sums  which  a  majority  of  the 
assessors  have  decided  to  be  the  true  value  thereof,  and  at 
which  they  Vv^ould  appraise  the  same  in  payment  of  a  just 
debt  due  from  a  solvent  debtor ;  and  also  that  the  said  as- 
sessment roll  contains  a  true  statement  of  the  aggregate  amount 
of  the  taxable  personal  estate  of  each  and  every  person  named 
in  the  said  roll,  over  and  above  the  amount  of  debts  due  from 
such  persons  respectively,  and  excluding  such  stocks  as  are 
otherwise  taxable  ;  and  that  with  the  exception  of  those  cases 
in  which  the  value  of  such  personal  estate  has  been  sworn  to 
by  the  owner  or  possessor,  we  have  estimated  the  same  accord- 
ing to  our  best  information  and  belief. 
Dated  August  1st,  1849. 

John  Eldridge,        j 
Phineas  Tompkins,  >  Assessors. 
Morgan  Lewis,  ) 

The  roll  thus  certified  must,  in  or  before  the  first  day  of  Sep- 
tember in  every  year,  be  delivered  by  the  assessors  of  each  ward 
in  the  city  of  New  York,  to  the  clerk  of  the  city,  and  by  the 
assessors  of  every  other  town  or  ward,  to  the  supervisor  thereof, 
who  is  required  to  deliver  the  same  to  the  board  of  supervisors 
at  their  next  meeting.     (1  R.  S.  447,  sec.  27.) 

Tiio  assessors,  in  the  execution  of  their  duties,  are  required  to 
use  the  forms,  and  pursue  the  instructions  which  are,  from  time 
to  lime,  transmitted  to  them  by  the  comptroller.     (Sec.  28.) 

If  any  assessor  wilfully  neglects  or  refuses  to  perform  any  of 
the  duties  required  of  hitn  by  statute,  he  forfeits  to  the  people  of 
the  slate  the  sum  of  filly  dollars.     (Sec.  29.) 


OF  COUNTY  AND  TOWN  OFFICERS.  529 

If  any  assessor  neglect,  or  from  any  canse  omit  to  perform  his 
duties,  the  other  assessors,  or  either  of  them,  of  the  town  or 
ward,  must  perform  such  duties,  and  certify  to  the  supervisors, 
with  their  assessment  roll,  the  name  of  such  delinquent  assessor, 
stating  therein  the  cause  of  such  omission.  (1  R.  S.  448,  sec. 
30.) 

The  boards  of  supervisors  of  the  several  counties,  at  every 
annual  meeting,  are  required  to  transmit  to  the  comptroller  the 
names  and  places  of  abode,  of  the  assessors  in  their  respective 
counties,  who  shall  have  wilfully  refused  or  neglected  to  per- 
form their  duties  ;  and  the  comptroller  must,  thereupon,  give 
notice  to  the  district  attornies  of  the  proper  counties,  to  the  end, 
that  they  may  prosecute  such  delinquent  assessors,  for  the  pe- 
nalties incurred  by  them.     (Id.  473,  sec.  3.) 

15.  Collector. 

The  statute  provides  that  one  collector  shall  be  chosen  at  the 
annual  town  meeting  in  each  town.     (Id.  387,  sec.  4.) 

Kvery  person  chosen  or  appointed  to  the  office  of  collector, 
before  he  enters  on  the  duties  of  his  office,  and  within  eight  days 
after  he  receives  notice  of  the  amount  of  the  taxes  to  be  collect- 
ed by  him,  is  required  to  execute  to  the  supervisor  of  the  town, 
and  lodge  with  him  a  bond,  with  one  or  more  sureties,  to  be  ap- 
proved of  by  such  supervisor,  in  double  the  amount  of  the  taxes, 
conditioned  for  the  faithful  execution  of  his  duties  as  collector. 
(1  R.  S.  396,  sec.  36.) 

collector's  bond. 

Know  all  men  by  these  presents,  that  we,  John  Doe  and 
Richard  Roe,  of  the  town  of  Oxford,  county  of  Chenango,  are 
held  and  firmly  bound  unto  the  supervisor  of  the  town  of  Ox- 
ford, aforesaid,  in  the  penal  sum  of — [insert  a  sum  equal  to  dou- 
ble the  amount  of  taxes  to  he  collected] — dollars,  to  be  paid  to 
the  said  supervisor,  his  successor  or  successors  in  office ;  for  which 
payment  well  and  truly  to  be  made,  we  jointly  and  severally 
bind  ourselves,  our  heirs,  executors,  and  administrators,  firmly 
by  these  presents.  Witness  our  hands  and  seals  this  fifth  day 
of  June,  1849. 

The  condition  of  the  above  obligation  is  such,  that  if  the 
above  bounden  John  Doe,  who  has  been  duly  chosen  collector 

34 


530  OF  COUNTY  AND  TOWN  OFFICERS. 

of  said  town,  shall  well  and  faithfully  execute  his  duties  as 

such  collector,  then  the  above  obligation  to  be  void,  otherwise  to 

remain  in  full  force  and  virtue. 

John  Doe,         [l.  s.] 
Richard  Roe,  [l.  s.] 

Sealed  and  delivered  in  presence  of 
Henry  Brown. 

The  supervisor  is  required,  within  six  days,  to  file  the  bond, 
with  iiis  approbation  endorsed  thereon,  in  the  office  of  the  coun- 
ty clerk,  who  must  make  an  entry  thereof  in  a  book  to  be  provi- 
ded for  the  purpose,  in  the  same  manner  in  wiiich  judgments 
are  entered  of  record.  The  bond  will  be  a  lien  on  all  the  real 
estate  held  jointly  or  severally  by  the  collector  or  his  sureties, 
within  the  county,  at  the  time  of  the  filing  of  the  bond  ;  and 
will  continue  to  be  such  lien  until  its  condition,  together  with  all 
costs  and  charges  which  may  accrue,  by  the  prosecution  there- 
of, shall  be  fully  satisfied.     (1  R.  S.  396,  sec.  37.) 

If  the  person  chosen  to  the  office  of  collector,  does  not  give 
the  required  security,  within  the  time  limited  for  that  purpose, 
such  neglect  will  be  deemed  a  refusal  to  serve.     (Sec.  41.) 

The  boards  of  supervisors  of  the  several  counties  of  the  state, 
must  cause  the  corrected  assessment  roll  of  each  town  or  ward 
in  their  respective  counties,  or  a  fair  copy  thereof,  to  be  deliver- 
ed to  the  collector  of  such  town  or  ward,  on  or  before  the 
fifteenth  day  of  December,  in  each  year.     (1  R.  S.  449,  sec.  36.) 

To  each  assessment  roll  so  delivered  to  a  collector,  a  warrant, 
under  the  hands  and  seals  of  the  board  of  supervisors,  or  of  a 
majority  of  them,  must  be  annexed,  connnanding  the  collector 
to  collect,  from  the  several  persons  named  in  the  assessment 
roll,  ihe  several  sums  mentioned  in  the  last  column  of  such 
roll  opposite  to  ilieir  respective  names.     (Sec.  37.) 

If  the  warrant  is  directed  lo  the  collector  of  a  town,  it  must 
direct  the  colUctor,  out  of  the  moneys  so  to  be  collected,  after 
dcdiiciing  the  con)j)cnsation  to  which  he  may  be  legally  entitled, 
to  pay-  - 

1.  To  the  town  superintendent  of  common  schools  of  his 
town,  such  sum  as  shall  have  been  raised  for  the  su])port  of  com- 
mon .'^chools  therein.  2.  To  the  conmiissioners  of  highways  of 
the  town,  such  .sum  as  shall  have  been  raised  (ov  the  support  of 
highways  and  bridges  therein.     3.  To  the  overseers  of  the  poor 


OF  COUNTY  AND  TOWN  OFFICERS.  531 

of  the  town,  if  there  is  no  county  poor  house,  or  other  place 
provided  in  the  county  for  the  reception  of  the  poor,  such  sum 
as  shall  have  been  raised  for  the  support  of  the  poor  in  such 
town.  4.  To  the  supervisor  of  the  town,  all  other  moneys 
which  shall  have  been  raised  therein,  to  defray  the  expenses  of 
the  town  ;  and  5.  To  the  treasurer  of  the  county,  the  residue 
of  the  moneys  so  to  be  collected. 

If  the  warrant  is  directed  to  the  collector  of  a  ward,  it  must 
direct  the  collector  to  pay  all  the  moneys  to  be  collected,  after 
deducting  his  compensation,  to  the  treasurer  of  the  county. 

In  all  cases,  the  warrant  must  authorize  the  collector,  in  case 
any  person  named  in  the  assessment  roll  refuses  or  neglects  to 
pay  his  tax,  to  levy  the  same  by  distress  and  sale  of  the  goods 
and  chattels  of  such  person  ;  and  it  must  require  all  payments 
therein  specified,  to  be  made  by  such  collector  on  or  before  the 
first  day  of  February,  then  next  ensuing. 

FORM    OF    WARRANT     TO    BE    ANNEXED    TO     THE    ASSESSMENT 

ROLL. 

Town  of  Chenango,  ss. 

To  the  Collector  of  the  said  Town,  Greeting  : 
You  are  hereby  commanded  to  collect,  from  the  several  persons 
named  in  the  assessment  roll  hereto  annexed,  the  several  sums 
mentioned  in  the  last  column  thereof,  opposite  to  their  respective 
names  ;  and  in  case  any  person  upon  whom  such  tax  is  impo- 
sed, shall  neglect  or  refuse  to  pay  the  same,  you  are  to  levy  the 
same  by  distress  and  sale  of  the  goods  and  chattels  of  the  per- 
son so  taxed.  And  you  are  to  make  return  of  this  warrant,  on 
or  before  the  1st  day  of  February,  next  ensuing ;  and,  within 
that  time,  to  pay  over  all  moneys  collected  by  virtue  hereof,  af- 
ter deducting  the  compensation  to  which  you  are  legally  enti- 
tled, in  the  following  manner  and  order  : — 1.  To  the  town  su- 
perintendent of  common  schools  of  your  town.  2.  To  the  com- 
missioners of  highways  of  the  said  town.  3.  To  the  overseers 
of  the  poor  of  the  town,  [or,  "  the  superintendents  of  the  poor  ot 
the  county."]  4.  To  the  supervisor  of  the  town  ;  to  each  of  the 
foregoing  the  several  sums  to  which  they  are  respectively  enti- 
tied.  And  lastly,  to  the  treasurer  of  the  county,  the  residue  of 
the  money  so  collected.     Hereof,  fail  not. 

Given  under  our  hands  and  seals  this  15th  day  of  Dec.  1849. 

A.  B.  ;  [l.  s.] 


532  OF  COUNTY  AND  TOWN  OFFICERS. 

As  soon  as  the  board  of  supervisors  shall  have  sent  or  deU- 
vered  the  rolls,  with  the  warrants  annexed,  to  the  collectors, 
they  are  required  to  transmit  to  the  treasurer  of  the  couuly  an 
account  thereof,  staling  the  names  of  the  several  collectors,  the 
amount  of  money  they  are  respectively  to  collect,  the  purposes 
for  which  the  same  are  to  be  collected,  and  the  persons  to 
whom,  and  the  time  when,  the  same  are  to  be  paid  ;  and  the 
county  treasurer,  on  receiving  such  account,  is  required  to  charge 
to  each  collector  the  sums  to  be  collected  by  him.  (1  R.  S.  449, 
sec.  39.) 

When  the  laws  respecting  cities,  direct  the  moneys  assessed 
for  any  local  purpose,  to  be  paid  to  any  person  or  officer,  other 
than  those  mentioned  above,  the  collector's  warrant  may  be 
varied  accordingly,  so  as  to  conform  to  such  alteration.  (Id. 
sec.  40.) 

Whenever  any  town  collector  receives  a  warrant  for  the  col- 
lection of  taxes,  he  must  immediately  cause  notices  of  its  receipt 
to  be  posted  up  in  five  public  places  in  the  ward  or  town,  and 
so  located,  as  will  be  most  likely  to  give  notice  to  the  inhabitants. 
A  centra]  and  convenient  place  in  the  town,  must  be  designated 
in  the  notices,  where  he  will  attend  from  nine  o'clock  forenoon, 
till  four  o'clock  afternoon,  at  least  once  in  each  week,  for 
thirty  days,  on  a  day  to  be  specified  in  the  notices,  for  the 
purpose  of  receiving  payment  of  taxes.     (1  R.  S.  450,  sec.  1.) 

FORM    OP    collector's    NOTICE. 

Notice  is  hereby  given,  to  the  taxable  inhabitants  of  the  town 
of  Chenango,  that  I,  the  undernamed  collector  of  taxes,  in  and 
for  the  said  town,  have  received  the  warrant  for  the  collection  of 
the  taxes  for  the  present  year  ;  and  that  I  will  attend  at  the  hotel 
of  Iliram  Way,  in  the  village  of  Binghamton,  in  said  town,  on 
Wednesday  of  each  week,  for  thirty  days  from  the  date  hereof, 
from  nine  o'clock  in  the  forenoon,  till  four  o'clock  in  the  after- 
noon, for  the  purpose  of  receiving  payment  of  taxes. 

Dated  the  15ih  day  of  December,  1849. 

Henry  Hudson,  Collector. 

It  is  tin;  (hily  of  tlic  collector  to  attend  at  the  time  and  place 
designated  in  the  notice  ;  and  any  person  may  pay  his  taxes  to 
the  collector  at  such   lime  and   place,  or  at  any  other  place  or 


OF  COUNTY  AND  TOWN  OFFICERS.  533 

time^  on  paying  one  per  cent  fees  thereon,  within  thirty  days 
from  the  first  posting  of  the  notices.  The  collector  cannot  re- 
ceive over  one  per  cent  fees,  for  receiving  or  collecting  any  taxes 
v/ithin  the  thirty  days  ;  but  he  is  entitled  to  one  cent  fees  on 
every  amount  of  tax  under  one  dollar,  paid  in,  or  collected,  with- 
in the  thirty  days.     (Id.) 

It  is  the  duty  of  the  collector,  after  the  expiration  of  thirty 
days,  to  proceed  and  collect  the  unpaid  taxes.  For  that  pur- 
pose, upon  receiving  the  tax  list  and  warrant,  he  must  call  at 
least  once  on  the  person  taxed,  or  at  the  place  of  his  usual  resi- 
dence, if  in  the  town  or  ward  for  which  the  collector  has  been 
chosen,  and  demand  payment  of  the  taxes  charged  to  him  on 
his  property,     (Id.  sec.  4.) 

In  case  any  person  refuses  or  neglects  to  pay  the  tax  imposed 
upon  him,  the  collector  is  required  to  levy  the  same  by  distress 
and  sale  of  the  goods  and  chattels  of  the  person  who  ought  to 
pay  the  same,  or  of  any  goods  and  chattels  in  his  possession, 
wherever  the  same  may  be  found  within  the  district  of  the  col- 
lector ;  and  no  claim  of  property  made  by  any  other  person 
will  be  available  to  prevent  a  sale.     (Id.  sec.  5.) 

The  collector  must  give  public  notice  of  the  time  and  place 
of  sale,  and  of  the  property  to  be  sold,  at  least  six  days  previous 
to  the  sale,  by  advertisements  to  be  posted  up  in  at  least  three 
pubhc  places  in  the  town  where  such  sale  is  made.  The  sale 
must  be  by  public  auction.     (Id,  sec.  6.) 

If  the  property  levied  on,  is  sold  for  more  than  the  amount  of 
the  tax,  the  surplus  must  be  returned  to  the  person  in  whose 
possession  such  property  was  when  the  levy  was  made,  if  no 
claim  is  made  to  such  surplus  by  any  other  person.  If  any 
other  person  claim  such  surplus,  on  the  ground  that  the  property 
sold  belonged  to  him,  and  such  claim  is  admitted  by  the  person 
for  whose  tax  the  same  was  levied,  the  surplus  must  be  paid  to 
such  owner ;  but  if  the  claim  is  contested  by  the  person  for 
whose  tax  the  property  was  levied,  the  surplus  moneys  must  be 
paid  over  by  the  collector  to  the  supervisor  of  the  town,  who 
must  retain  the  same  until  the  rights  of  the  parties  are  deter- 
mined by  due  course  of  law.     (1  R.  S.  451,  sec.  7.) 

In  case  any  person  upon  whom  any  tax  is  assessed  in  any 
ward  of  any  of  the  cities,  or  in  any  town  within  the  state, 
remove  out  of  such  ward  or  town  after  the  assessment,  and 
before  the  tax  ought  by  law  to  be  collected  ;  or  if  any  person 


534  OF  COUNTY  AND  TOWN  OFFICERS. 

neglect  or  refuse  to  pay  any  tax  which  is  assessed  in  any  ward 
of  either  of  the  cities,  or  in  any  town,  upon  any  estate  of  such 
person  situated  out  of  the  ward  or  town  in  which  he  resides, 
and  within  the  county  ;  in  either  of  those  cases,  the  collector  of 
the  town  or  ward  may  levy  and  collect  such  tax  of  the  goods 
and  chattels  of  the  person  assessed  in  any  ward  within  the  said 
cities,  or  in  any  town  within  the  said  county,  to  which  such 
person  may  have  removed,  or  in  which  he  resides.     (Id.  sec.  8.) 

In  case  of  the  refusal  or  neglect  of  any  person  to  pay  any 
tax  imposed  on  him  for  personal  property,  if  there  are  no  goods 
or  chattels  in  his  possession  upon  which  the  same  may  be 
levied,  and  if  the  property  assessed  exceed  the  sum  of  one 
thousand  dollars,  the  collector  of  the  town  or  ward,  if  he  has 
reason  to  believe  that  the  person  taxed  has  debts,  credits,  choses 
in  action,  or  other  personal  property,  not  taxed  elsewhere  in  the 
state,  and  upon  which  levy  cannot  be  made  according  to  law, 
must  report  the  same  to  the  assessors  of  the  town  or  ward  ;  and 
any  assessor  may  thereupon,  in  his  discretion  make  application 
within  one  year  to  the  County  Court,  or  to  the  Supreme  Court, 
to  enforce  the  payment  of  such  tax.     (Id.  sec.  9.) 

Every  collector  is  required,  within  one  week  after  the  time 
mentioned  in  his  warrant  for  paying  the  moneys  directed  to  be 
paid  to  the  town  officers  of  his  town  and  to  the  county  treasu- 
rer, to  pay  to  such  town  officers  and  county  treasurer  the  sums 
required  in  the  warrant  to  be  paid  to  them  respectively,  first 
retaining  the  compensation  to  which  he  may  legally  be  entitled. 
The  town  officers  to  whom  any  such  moneys  are  paid,  must 
deliver  to  the  collector  duplicate  receipts  therefor,  one  of  which 
duplicates  must  be  filed  by  the  collector  with  the  county  trea- 
surer, and  will  entitle  him  to  a  credit  in  the  books  of  the  county 
treasurer  for  the  amount  therein  stated  to  have  been  received  ; 
and  no  other  evidence  of  such  payment,  can  be  received  by  the 
county  treasurer.     (Id.  sec.  13.) 

Whenever  any  greater  amount  of  taxes  arc  assessed  in  any 
town  than  the  town  charges,  and  its  proportion  of  the  state  tax 
and  county  charges,  the  surplus  must  be  paid  by  the  collector 
to  the  county  treasurer,  who  is  required  to  place  it  to  the  credit 
of  the  town,  and  the  same  goes  to  the  reduction  of  the  tax  o 
the  succeeding  year.     (1  R.  S.  453,  sec.  14.) 

The  collector  is  required  to  receive  the  lax  on  a  part  of  any 
lot,  piece,  or  parcel  of  land,  charged  with  taxes,  provided  the 


OF  COUNTY  AND  TOWN  OFFICERS.  535 

person  paying  such  tax,  furnishes  a  particular  specification  of 
such  part ;  and  if  the  tax  on  the  remainder  of  such  lot,  piece, 
or  parcel  of  land,  remains  unpaid,  the  collector  is  required  to 
enter  such  specification  in  his  return  to  the  county  treasurer,  to 
the  end  that  the  part  on  which  the  tax  remains  unpaid  may  be 
clearly  known.     (Id.  sec.  15.) 

If  the  part  on  which  the  tax  is  so  paid,  is  an  undivided  share, 
the  person  paying  the  same,  must  state  to  the  collector  who  is 
the  owner  of  such  share,  that  it  may  be  excepted  in  case  of  a 
sale  for  the  tax  on  the  remainder  ;  and  the  collector  must  enter 
the  name  of  the  owner  on  his  account  of  arrears  of  taxes.  (Id. 
sec.  16.) 

If  any  of  the  taxes  mentioned  in  the  tax  list  annexed  to  his 
warrant  remain  unpaid,  and  the  collector  is  not  able  to  collect 
the  same,  he  must  deliver  to  the  county  treasurer  an  account  of 
the  taxes  so  remaining  due  ;  and  upon  making  oath  before  the 
county  treasurer,  or  in  case  of  his. absence,  before  any  Justice 
of  the  Peace,  that  the  sums  mentioned  in  such  account  remain 
unpaid,  and  ^hat  he  has  not,  upon  diligent  inquiry,  been  able  to 
discover  any  goods  and  chattels  belonging  to,  or  in  the  pos- 
session of  the  persons  charged  with,  or  liable  to  pay  such  sums, 
whereon  he  could  levy  the  same ;  he  must  be  credited  by  the 
county  treasurer  with  the  amount  thereof.     (Id.  sec.  17.) 

If  any  person  chosen  or  appointed  to  the  office  of  collector  of 
any  town  or  ward  in  the  state  refuses  to  serve,  or  dies,  resigns, 
or  removes  out  of  the  town  or  ward,  before  he  shall  have  en- 
tered upon  or  completed  the  duties  of  his  office,  or  is  disabled 
from  completing  the  same,  by  reason  of  sickness  or  any  other 
cause,  the  supervisors  and  any  two  Justices  of  such  town  or 
ward,  must  forthwith  appoint  a  collector  for  the  remainder  of 
the  year,  who  is  required  to  give  the  like  security,  and  is  subject 
to  the  like  duties  and  penalties,  and  has  the  same  powers  and 
compensation  as  the  collector  in  whose  place  he  is  appointed  ; 
and  the  supervisor  must  forthwith  give  notice  of  such  appoint- 
ment to  the  county  treasurer.  But  such  appointment  will  not 
exonerate  the  former  collector  or  his  sureties,  from  any  liability 
incurred  by  him  or  them.     (1  R.  S.  454,  sec.  21.) 

If  a  warrant  has  been  issued  by  the  board  of  supervisors,  pre- 
vious to  the  appointment  of  a  person  in  the  place  of  the  original 
collector,  the  original  warrant,  if  it  can  be  obtained,  must  be 
delivered  to  the  collector  so  appointed,  and  be  considered  as 


636  01"'  COUNTY  AND  TOWN  OFFICERS. 

giving  him  the  same  power  as  if  originally  issued  to  himself; 
but  if  the  warrant  cannot  he  obtained,  a  new  one  must  be  made 
out  by  the  clerk  of  the  board  of  supervisors  of  the  county, 
which  must  be  directed  to  the  collector  so  appointed.  Upon 
every  such  appointment,  the  supervisor  of  the  town  or  ward,  if 
he  thinks  it  necessary,  may  extend  the  time  limited  for  the  col- 
lection of  the  taxes,  for  a  period  not  exceeding  thirty  days ;  of 
which  extension  he  must  forthwith  give  notice  to  the  county 
treasurer.     (Id.  sec.  22.) 

If  any  collector  refuses  or  neglects  to  pay  to  the  several  town 
officers  of  his  town,  or  to  the  county  treasurer,  the  sums  re- 
quired by  his  warrant  to  be  paid  to  them  respectively,  or  either 
of  them,  or  to  account  for  the  same  as  unpaid,  the  county  trea- 
surer must,  within  twenty  days  after  the  time  when  such  pay- 
ments ought  to  have  been  made,  issue  a  warrant  under  his  hand 
and  seal,  directed  to  the  sherifl"  of  the  county,  commanding 
him  to  levy  such  sum  as  shall  remain  unpaid  and  unaccounted 
for  by  such  collector,  of  the  goods  and  chattels,  lands  and  tene- 
ments, of  such  collector,  and  to  pay  the  same  X.o  the  county 
treasurer,  and  return  such  warrant  within  forty  days  after  the 
date  thereof,  which  warrant  the  county  treasurer  must  imme- 
diately deliver  to  the  sheriff"  of  the  county  ;  but  no  such  warrant 
can  be  issued  by  the  county  treasurer  for  the  collection  of  moneys 
payable  to  town  officers,  without  proof,  by  the  oath  of  such  town 
officers,  of  the  refusal  or  neglect  of  the  collector  to  pay  the  same, 
or  account  therefor.     (Id.  sec.  23.) 

The  sheriff"  to  whom  such  warrant  is  directed,  must  imme- 
diately cause  the  same  to  be  executed,  and  make  return  thereof 
to  the  county  treasurer  within  the  time  therein  specified,  and 
pay  to  him  the  money  levied  by  virtue  thereof,  deducting  for 
his  fees  the  same  compensation  that  the  collector  would  have 
been  entitled  to  retain.  Such  part  of  the  moneys  collected,  if 
any,  as  ought  to  have  been  paid  by  the  collector  to  town  officers, 
must  be  paid  by  the  county  treasurer  to  the  officers  to  whom 
the  colhjctor  was  directed  to  pay  the  same;  but  if  the  whole 
amount  of  moneys  due  from  the  collector  shall  not  be  collected 
in  such  warrant,  the  county  treasurer  must  first  retain  the 
amount  which  ought  to  have  been  paid  to  him,  before  making 
any  [);iyiii<'iii  to  iIk;  lown  oOiccis.     (I  R.  8.  '15.'),  sec.  2'J.) 

If  tin;  whole  sum  dm;  iVom  liu!  collector  is  collected,  the 
sheriff"  must  so  slate  in  his  return  ;  but  if  a  part  only,  or  if  no 


OF  COUNTY  AND  TOWN  OFFICERS.  537 

part  of  such  sum  is  collected,  the  sherifF  must  state  in  his  return 
the  amount  levied,  if  any,  exclusive  of  his  fees,  and  must  also 
certify  that  such  collector  has  no  goods  or  chattels,  lands  or 
tenements,  in  his  county,  from  which  the  moneys,  or  the  residue 
thereof,  as  the  case  may  be,  could  be  levied  ;  and  in  either  case, 
the  county  treasurer  must  forthwith  give  notice  to  the  supervisor 
of  the  town,  or  ward,  of  the  amount  due  from  such  collector. 
(Id.  sec.  25.) 

The  supervisor  must  forthwith  cause  the  bond  of  such  collec- 
tor to  be  put  in  suit.  He  will  be  entitled  to  recover  thereon  the 
sum  due  from  such  collector,  with  costs  of  suit ;  and  the  moneys 
recovered  must  be  applied  and  paid  by  the  supervisor  in  the 
same  manner  in  which  it  was  the  duty  of  the  collector  to  have 
applied  and  paid  the  same.     (Id.  sec.  26.) 

If  any  sheriff  neglect  to  return  any  such  warrant,  or  to  pay 
the  money  levied  thereon,  within  the  time  limited  for  the  return 
of  such  warrant ;  or  make  any  other  return  than  such  as  is 
above  mentioned,  the  county  treasurer  must  forthwith  proceed 
to  collect  by  attachment,  the  whole  sum  directed  to  be  levied 
by  such  warrant.     (Id.  sec.  27.) 

In  case  the  county  treasurer  fail  to  collect  such  moneys  by 
attachment,  he  must  certify  to  the  comptroller  that  he  has 
issued  such  warrant,  stating  its  contents  ;  that  the  sheriff  has 
neglected  to  return  the  same  in  the  manner  required  by  law,  or 
to  pay  the  money  levied  thereon,  as  the  case  may  be  ;  and  that 
he  has  pursued  the  remedy  by  attachment,  without  effect.  (Id. 
sec.  28.) 

The  comptroller  must  give  notice  thereof  to  the  attorney 
general,  Avho  must  immediately  prosecute  the  sheriff  and  his 
sureties,  for  the  sum  due  on  the  warrant ;  which  sum,  when 
collected,  must  be  paid  to  the  treasurer  of  the  state,  and  by  him, 
on  the  comptroller's  warrant,  to  the  county  treasurer.  (1  R.  S. 
455,  sec.  29.) 

Upon  the  settlement  of  the  amount  of  taxes  directed  to  be  col- 
lected by  any  collector  in  any  of  the  towns  or  wards  in  the 
state,  (the  city  of  New  York  excepted,)  the  county  treasurer  is 
required,  if  requested,  to  give  such  collector,  or  to  any  of  his 
.sureties,  a  satisfaction  piece  in  writing,  and  to  acknowledge  the 
same  before  some  person  authorized  to  take  acknowledgments 
of  the  satisfaction  of  judgment  in  courts  of  record.     (Sec.  30.) 

Upon  the  production  of  such  satisfaction  piece,  acknowledged 


538  OF  COUNTY  AND  TOWN  OFFICERS. 

as  aforesaid,  the  clerk  of  the  county  must  enter  satisfaction  of 
record  of  the  collector's  bond,  which  will  thereby  be  discharged. 
(Sec.  31.) 

All  losses  which  may  be  sustained  by  the  default  of  the  col- 
lector of  any  town  or  ward,  are  chargeable  on  such  town  or 
ward.     (1  R.  S.  474,  sec.  6.) 

If  in  consequence  of  having  received  irregular  and  imperfect 
descriptions  of  the  lands  of  non-residents  in  any  town,  the 
comptroller  shall  apprehend  that  irregular  or  imperfect  returns 
may  again  be  received,  he  may  give  notice  of  such  apprehension 
to  the  board  of  supervisors  of  the  proper  county  at  their  annual 
meeting,  specifying  the  several  towns  in  such  county,  the  re- 
turns from  which  will  probably  require  correction.  (Sec.  8.)  It 
is  the  duty  of  the  board  of  supervisors  to  require  the  assessors 
and  collector  of  the  town,  specified  in  the  notice  of  the  comp- 
troller, to  meet  in  such  town,  at  such  place  as  shall  be  designa- 
ted by  the  supervisors  within  thirty  days  of  the  expiration  of 
the  time  when  the  collectors  are  to  make  their  returns  to  the 
county  treasurers.  (Sec.  9.)  The  assessors  and  collectors  must 
meet  pursuant  to  such  requisition.  The  collectors  must  specify 
to  the  assessors,  the  several  lots  to  be  returned  as  non-resident 
property,  by  reason  of  the  non-payment  of  the  taxes.  In  case 
the  descriptions  of  any  of  the  lots  are  found  erroneous  and  im 
perfect,  the  assessors  must  correct  the  same  conformable  to  such 
instructions  as  may  have  been  received  from  the  comptroller, 
and  the  collector  must  thereupon  return  the  lots  as  arranged 
and  described  by  the  assessors,  to  the  county  treasurer.  (Sec.  10.) 

It  is  provided  that  in  all  the  counties  of  the  state,  except  the 
county  of  New  York,  there  shall  be  annually  collected  and  lev- 
ied, the  following  tax  upon  dogs  :  Upon  every  bitch  of  three 
months  old,  or  upwards,  kept  by  any  one  person  or  family,  two 
dollars  ;  upon  every  additional  bitch  kept  by  the  same  person  or 
family,  five  dollars  ;  upon  two  dogs,  six  months  old  or  upwards, 
other  than  bitches  kept  by  one  person  or  family,  one  dollar ; 
upon  every  such  dog  more  than  two,  kept  by  the  same  person 
or  family,  three  dollars.     (1  R.  S.  884,  sec,  1.) 

The  assessors  of  any  town,  at  the  time  of  making  their  an- 
nual assessments,  must  inquire  and  ascertain  the  number  of 
dogs  liable  to  be  taxed,  and  enter  in  lists  to  bo  made  by  them, 
the  name  of  every  per.son  in  their  respective  towns,  then  owning 
or  keeping  any  dog  subject  to  the  above  tax,  the  number 


OF  COUNTY  AND  TOWN  OFFICERS.  539 

by  such  person,  and  the  whole  amount  of  the  tax  to  be  paid  by 
him.     (Sec.  2.) 

The  owner  or  possessor  of  every  dog  hable  to  the  above  tax, 
must,  whenever  required  by  any  assessor,  deUver  to  him  a  de- 
scription in  writing  of  every  such  dog  owned  or  possessed  by 
him.  For  every  neglect  or  refusal  so  to  do,  and  for  every  false 
statement,  made  in  any  description  so  furnished,  he  will  forfeit 
five  dollars,  to  be  recovered  by  the  supervisor  of  the  town. 
(Sec.  3.) 

The  assessors  of  every  town  are  required,  within  the  time 
fixed  by  law,  for  the  completion  of  their  assessment  rolls,  of 
real  and  personal  property,  to  make  out  a  duplicate  of  the  lists 
so  by  them  made,  containing  the  names  of  the  owners  and  pos- 
sessors of  dogs  liable  to  taxation,  with  the  amount  payable  by 
each  person,  and  annex  thereto  a  direction  to  the  collector  of 
the  town,  to  levy,  raise,  and  collect,  the  several  sums  in  such 
lists  specified,  of  the  persons  respectively,  opposite  to  whose  names 
the  said  sums  are  set,  according  to  law,  and  to  pay  over  the 
same,  after  deducting  his  legal  commissions,  to  the  county  trea- 
surer ;  which  must  be  signed  by  them,  and  immediately  deliv- 
ered to  the  town  collector.     (Sec.  4.) 

The  collector,  to  whom  such  list  is  delivered,  must  proceed 
and  collect  the  sums  of  money  therein  specified,  within  sixty 
days  from  the  time  of  such  delivery,  in  the  same  manner,  and 
with  the  like  authority,  in  all  respects,  as  in  the  collection  of 
taxes  imposed  by  the  supervisors  of  the  county,  and  must  pay 
the  same  to  the  county  treasurer,  after  deducting  the  commis- 
sions allowed  by  law ;  and  the  same  remedies  to  compel  such 
collection,  and  the  payment  over  of  the  moneys  collected,  may 
be  had  against  such  collectors  and  their  sureties,  as  in  case  of 
taxes  levied  by  supervisors.     (1  R.  S.  884,  sec.  5.) 

If  any  person  duly  assessed,  refuses  or  neglects  to  pay  the  tax 
so  assessed  for  five  days  after  demand  thereof,  it  is  lawful  for 
any  person  to  kill  the  dog  so  taxed.     (Sec.  6.) 

The  collectors  are  allowed  to  retain  a  commission  of  five  dol- 
lars upon  the  hundred  dollars,  and  at  that  rate  upon  all  sums 
collected  by  them,  pursuant  to  the  directions  of  the  assessors. 
(Sec.  7.) 

16.  Constables. 
There  must  be  chosen  at  the  annual  town  meeting  in  each 


540  OF  COUNTY  AND  TOWN  OFFICERS. 

town,  constables  for  the  ensuing  year,  not  to  exceed  five.     (1 
R.  S.  387,  sec.  4.) 

Every  person  chosen  or  appouited  to  the  office  of  constable, 
before  he  enters  on  the  duties  of  his  office,  and  within  eight 
days  after  he  is  notified  of  his  election  or  appointment,  must 
take  and  subscribe  the  oath  of  office  prescribed  by  the  constitu- 
tion, and  execute,  in  the  presence  of  the  supervisor  or  town  clerk 
of  the  town,  with  one  or  more  sureties,  to  be  approved  of  by  such 
supervisor  or  town  clerk,  an  instrument  in  writing  by  which 
such  constable  and  his  sureties  jointly  and  severally  agree  to 
pay  to  each  and  every  person  who  may  be  entitled  thereto,  all 
such  sums  of  money  as  the  said  constable  may  become  liable 
to  pay,  on  account  of  any  execution  that  may  be  delivered  to 
him  for  collection.     (Id.  396,  sec.  38.) 

FORM  OF  SECURITY  TO  BE  GIVEN  BY  A  CONSTABLE. 

William  Cooke,  chosen  a  constable  in  the  town  of  Oxford, 
county  of  Chenango,  and  John  Doe  and  Richard  Roe,  as  sure- 
ties, do  hereby  jointly  and  severally  agree  to  pay  to  each  and 
every  person  who  may  be  entitled  thereto,  all  such  sums  of 
money  as  the  said  constable  may  become  liable  to  pay  on  ac- 
count of  any  execution  that  may  be  delivered  to  him  for  collec- 
tion.    Dated  the  5th  day  of  June,  1819. 

William  Cooke,    [l.  s.] 
John  Doe,  [l.  l.] 

Richard  Roe,  [l.  s.] 
Executed  in  the  presence  of  Samuel 
Peters,  Supervisor  of  the  Town  of 
Oxford ;  or  in  the  presence  of  Wil- 
liam Stow,  Town  Clerk  of  the 
Town  of  Oxford. 

The  supervisor  or  town  clerk  must  endorse  on  the  foregoing, 
his  approbation  of  the  sureties  therein  named.  (1  R.  S.  390,  sec. 
39.) 

FORM    OF    ENDORSEMENT. 

I  approve  the  sureties  named  iu  the  within  instrument.  Dated 
the  5th  day  of  June,  18^19. 

Samuel  Peters,  Supervisor,  (fcc. ;  or, 
William  S'J'ow,  Town  Clerk,  &c. 


OF  COUNTY  AND  TO  UN  OFFICERS.        .  54^ 

The  supervisor  or  town  clerk,  must  then  cause  the  bond  to  be 
filed  in  the  office  of  the  town  clerk.  A  copy  of  such  instrument, 
certified  by  the  town  clerk,  will  be  presumptive  evidence  in  all 
courts,  of  the  execution  thereof  by  the  constable  and  his  sure- 
ties.    (Id.) 

If  any  person  chosen  or  appointed  to  the  office  of  constable, 
does  not  give  the  required  security  and  take  the  required  oath 
of  office,  within  the  time  limited  for  that  that  purpose,  such  ne- 
glect will  be  deemed  a  refusal  to  serve.     (Sec.  41.) 

All  actions  against  a  constable  or  his  sureties  npon  any  in- 
strument given  as  security  for  the  faithful  discharge  of  his  du- 
ties, must  be  prosecuted  within  two  years  after  the  expiration  of 
the  year  for  which  the  constable  named  therein  shall  have  been 
elected.     (Sec.  40.) 

The  constable's  duties  in  serving  summons,  executions,  ven- 
ires, attachments,  and  warrants,  have  already  been  treated  under 
those  respective  heads. 

Any  constable  to  whom  any  execution  may  have  been  issued 
and  delivered,  and  whose  term  of  office  expires  before  the  time 
within  which  the  collection  or  return  of  such  execution  is  re- 
quired by  law,  must  proceed  in  all  matters  relative  to  said  exe- 
cution, in  the  same  manner  as  if  his  term  of  office  had  not  ex- 
pired.    (1  R.  S.  370,  sec.  297.) 

Such  constable,  and  his  bail,  will  be  liable  for  any  neglect  of 
duty,  and  for  moneys  collected  upon  such  execution,  in  the  same 
manner,  and  to  the  same  extent,  as  if  the  term  of  office  of  such 
constable  had  not  expired.     (2  R.  S.  370,  sec.  298.) 

The  constable  who  serves  either  the  original  or  jury  process 
in  a  cause,  cannot  appear  and  advocate  for  either  party  at  the 
trial,  but  may  act  as  attorney  at  any  other  stage  or  proceeding  in 
the  cause.     (Id.  331,  sec.  45.) 

It  is  enacted,  that  no  constable  shall  directly  or  indirectly  buy, 
or  be  interested  in  buying,  any  bond,  note,  or  other  demand,  or 
cause  of  action,  for  the  purpose  of  commencing  any  suit  there- 
on before  a  Justice  ;  nor  shall  any  constable,  either  before  or  af- 
ter suit  brought,  lend  or  advance,  or  agree  to  lend  or  advance, 
or  procure  to  be  lent  or  advanced,  any  money  or  other  valuable 
thing,  to  any  person,  in  consideration  of,  or  as  a  reward  for,  or 
inducement  to,  the  placing,  or  having  placed  in  the  hands  of 
such  constable  any  debt,  demand,  or  cause  of  action  whatever, 
for  prosecution  or  collection.     (Id.  362,  sec.  241.) 


542  OF  COUNTY  AND  TOWN  OFFICERS. 

It  is  provided,  that  no  constable  shall  ask  or  receive  any  mo- 
ney or  valuable  thing  from  a  defendant,  or  any  other  person,  as 
a  consideration,  reward,  or  inducement,  for  omitting  to  arrest 
any  defendant,  or  to  carry  him  before  any  Justice  ;  or  for  delay- 
ing to  take  any  party  to  prison ;  or  for  postponing  the  sale  of 
any  property  under  any  execution  ;  or  for  omitting  or  delay- 
ing the  execution  of  any  duty  pertaining  to  his  office.     (Sec. 

240.) 

It  is  declared,  that  every  constable  offending  against  the  fore- 
going provisions  of  the  statute,  will  be  deemed  guilty  of  a  mis- 
demeanor, and,  on  conviction,  will  be  subject  to  fine  or  imprison- 
ment, or  both,  in  the  discretion  of  the  court,  and  to  a  forfeiture 
of  his  office.     (Sec.  242.) 

If  a  constable  have  collected  any  money  on  an  execution, 
and  a  recovery  therefor  be  had  against  his  sureties,  upon  com- 
plaint thereof  to  three  Justices  of  the  town,  they  are  to  summon 
him  before  them,  to  show  cause  why  he  should  not  be  removed 
from  office.  If  the  complaint  be  established  to  the  satisfaction 
of  two  of  the  Justices,  after  a  hearing  of  the  parties,  or  after  the 
refusal  or  neglect  of  the  constable  to  appear,  they  must,  by  an 
instrument  under  their  hands,  remove  him  from  office,  assign- 
ing in  it  the  reason  of  such  removal,  and  file  it  in  the  office  of 
the  town  clerk,  whose  duty  it  is  to  cause  a  certified  copy  there- 
of to  be  served  on  such  constable ;  whereupon,  he  ceases  to  have 
any  power  or  authority  as  such,  and  his  office  is  deemed  vacant. 
(2  R.  S.  368,  sees.  280,  281,  282.) 

The  sheriff  of  any  county,  where  the  Supreme  Court  holds  a 
term  is  required  to  summon  two  constables  of  the  county  to  at- 
tend the  court,  who  receive  such  compensation  tlierefor  as  the 
comptroller  may  deem  reasonable.  It  is  also  the  duty  of  the 
sheriff  of  each  county,  to  summon  as  many  marshals  or  consta- 
bles thereof,  to  attend  the  sittings  of  any  Circuit  Court,  Court  of 
Oyer  and  Terminer,  County  Court,  or  Sessions,  as  the  presiding 
Judge  of  such  court  may  direct ;  or  if  no  such  directions  have 
been  given,  then  as  many  as  such  sheriff  may  think  necessary. 
And  every  marshal  or  constable,  so  summoned,  is  required  to 
attend  the  sitting  of  the  court,  upon  pain  of  being  fined  for 
every  days  neglect,  a  sum  not  exceeding  five  dollars.     (Id.  200.) 

A  constable  to  whom  any  process  is  directed  and  delivered, 
must  execute  the  same  in  person  ;  he  cannot  depute  or  autho- 


OF  COUNTY  AND  TOWN  OFFICERS.  543 

rize  another  person  to  execute  or  serve  it  for  him.  (Id.  368,  sec. 
285.) 

If  a  constable  neglect  to  return  an  execution  within  five  days 
after  the  return  day  thereof,  the  party  in  whose  favor  it  was  is- 
sued, may  maintain  an  action  against  him  and  his  sureties,  and 
recover  the  amount  of  tlie  execution,  with  interest,  from  the 
time  the  judgment  was  rendered  ;  and  if  judgment  be  recover- 
ed in  such  suit  against  the  constable,  execution  may  issue  thereon 
immediately.  And  if  a  constable  fail  to  pay  over  money  col- 
lected on  execution,  an  action  may  be  maintained  by  the  party 
entitled  to  such  money,  in  his  own  name,  on  the  instrument  of 
security  given  by  him,  and  recover  the  amount  so  collected,  with 
interest,  from  the  time  of  collection  ;  and  execution  may  issue 
immediately.     (Id.  348,  349.) 

It  is  provided,  that  every  constable,  to  whom  shall  be  directed 
and  delivered  any  attachment,  summons,  precept  to  summon  a 
jury,  warrant  to  apprehend  a  witness,  or  any  other  person,  or 
any  other  process  authorized  by  law  to  be  issued  by  a  Circuit 
Judge,  Supreme  Court  Commissioner,  Judge  of  County  Courts, 
or  Justice  of  the  Peace,  in  any  special  proceeding  or  matter  be- 
fore such  Judge,  Supreme  Court  Commissioner,  or  Justice,  ex- 
cept civil  suits,  before  Justices  of  the  Peace,  shall  execute  such 
process  as  therein  commanded  ;  and  for  any  wilful  neglect  so  to 
do,  may  be  fined  by  the  officer  issuing  the  same,  in  a  sum  not 
exceeding  twenty-five  dollars.     (2  R.  S.  G37,  sec.  3.) 

When  any  constable  or  other  officer  who  may  have  summon- 
ed any  jury,  in  the  case  mentioned  above,  shall  be  required,  by 
the  officer  issuing  such  summons,  to  attend  such  jury,  and  take 
charge  of  them,  he  is  bound  to  do  so ;  and  for  any  wilful  neglect 
to  obey  such  order,  or  for  any  misconduct  while  attending  such 
jury  by  which  the  rights  or  remedies  of  any  party  to  such  pro- 
ceeding may  be  impaired  or  prejudiced,  such  constable  will  be 
liable  to  be  fined  by  the  officer  before  whom  such  jury  shall 
have  appeared,  in  a  sum  not  exceeding  twenty-five  dollars. 
(Sec.  5.) 

Upon  such  fine  being  imposed  in  either  of  the  cases  herein 
before  specified,  notice  thereof  must  be  given  to  the  person  fined, 
to  the  end  that  he  may  render  any  excuse  to  the  officer  impos- 
ing the  same,  or  show  cause  why  such  fine  should  be  remitted. 
(Sec.  6.) 

If  no  such  excuse  is  rendered,  or  cause  shown,  within  thirty 


544  OF  COUNTY  AND  TOWN  OFFICERS. 

days  after  the  service  of  the  notice,  and  such  fine  shall  not  have 
been  remitted  by  the  officer  imposing  the  same,  snch  officer 
must  make  a  special  return  of  the  delinquency  or  misconduct 
for  wJiich  the  fine  was  imposed,  with  the  amount  thereof,  to  the 
next  County  Court,  in  which  the  delinquent  resides.     (Sec.  7.) 

The  clerk  of  the  court  to  which  such  return  is  made,  must  de- 
liver a  copy  thereof  to  the  district  attorney  of  the  county,  with 
copies  of  the  minutes  of  fines  imposed  by  such  court ;  which 
must  bo  collected,  and  may  be  remitted  or  mitigated  in  the 
same  manner  as  fines  imposed  by  courts  of  record,  upon  de- 
faulting jnrors.     (Sec.  8.) 

It  is  provided,  that  if  any  constable  shall — 1.  Wilfully  and 
corruptly  refuse  to  execute  any  lawful  process  directed  to  him, 
requiring  the  apprehension  or  confinement  of  any  person  charg- 
ed with  a  criminal  offence  ;  or  2.  Shall  corruptly  or  wilfully 
omit  to  execute  such  process,  by  which  such  person  shall  es- 
cape;  or  3.  Shall  wilfully  refuse  to  receive,  in  any  jail  under 
his  charge,  any  offender  lawfully  committed  to  such  jail,  and 
ordered  to  be  confined  therein,  on  any  criminal  charge  or  con- 
viction, or  on  any  lawful  process  whatever;  or  4.  Shall  wilfully 
suffer  any  offender  lawfully  committed  to  his  custody,  to  escape 
and  go  at  large;  or  5.  Shall  receive  any  gratuity  or  reward,  or 
any  security  or  engagement  for  the  same,  to  procure,  assist,  con- 
nive at,  or  permit  any  prisoner  in  his  custody,  on  any  civil  pro- 
cess or  any  criminal  charge  or  conviction  to  escape,  whether 
such  escape  be  attempted,  or  effected,  or  not.  He  shall,  upon 
conviction,  be  punished  by  imprisonment  in  a  county  jail,  not 
exceeding  one  year,  or  by  fine,  not  exceeding  one  thousand  dol- 
lars or  by  both  such  fine  and  imprisonment,     (2  R.  S.  770,  sec. 

70.)' 

Every  constable  who  is  convicted  of  any  offence  specified 
above,  forfeits  his  office,  and  is  forever  disqualified  to  hold  any 
office  or  place  of  trust,  honor,  or  profit,  under  the  laws  or  con- 
stitution of  this  state.     (Sec.  21.) 

17.   Commissioners  of  Highways. 

The  electors  of  each  town  iiavc  power,  at  their  annual  town 
meeting,  to  determine,  by  resolution,  whether  there  shall  be 
chosen  one,  or  three  highway  conunissioncrs,  and  the  number 
so  determined  upon,  must  be  ballottcd  for  and  chosen  ;  and  if 


OF  COUNTY"  AND  TOWN  OFFICERS.  545 

only  one  is  determined  upon  and  chosen,  he  possesses  all  the 
powers,  and  must  discharge  all  the  duties  of  commissioners  of 
highways,  as  prescribed  by  law,  and  holds  his  office  for  one 
year.     (Laws,  1847,  eh.  455.) 

Whenever  three  commissioners  are  chosen  in  any  town,  they 
must  be  divided  by  lot,  by  the  canvassers,  upon  the  result  of 
the  canvass,  into  three  classes,  to  be  numbered  one,  two,  and 
three  ;  the  term  of  office  of  the  first  class  must  be  one  year — of 
the  second,  two — and  of  the  third,  three  ;  and  one  commissioner 
only  must  thereafter  be  annually  elected  in  such  town,  to  hold 
his  office  for  three  years,  and  until  a  successor  shall  be  duly 
elected  or  appointed.  But  in  case  any  commissioner  is  elected 
to  fill  a  vacancy,  he  holds  the  office  only  for  the  unexpired  term 
which  shall  have  become  vacant ;  and  if  two  vacancies  are  re- 
quired to  be  filled,  the  canvassers  must,  after  the  canvass,  deter- 
mine by  lot,  the  terms  they  shall  respectively  hold.  When  any 
vacancy  occurs,  by  death,  removal,  resignation,  neglect  to  qua- 
lify, or  refusal  to  serve,  it  must  be  supplied  until  the  next  suc- 
ceeding annual  town  meeting,  by  an  appointment  in  writing, 
under  the  hands  of  any  three  Justices  of  the  Peace,  or  two  Jus- 
tices, and  the  supervisor  of  the  town.  W^henever  any  town 
shall  have  determined  upon  having  three  commissioners,  and  de- 
sires to  return  two,  or  have  but  one,  such  town  has  the  power  so 
to  do,  by  resolution,  taken  at  an  annual  town  meeting,  and  when 
such  resolution  may  have  been  adopted,  no  other  commissioner 
can  be  elected  or  appointed,  until  the  term  or  terms  of  those  in 
office,  at  the  time  of  adopting  the  resolution,  expires,  or  becomes 
vacant ;  and  they  have  power  to  act  until  their  terms  severally 
become  vacant,  or  expire,  as  fully  as  if  the  three  continued  in 
office. 

Every  person  chosen  or  appointed  to  the  office  of  commis- 
sioner of  highways,  before  he  enters  on  the  duties  of  his  office, 
and  within  ten  days  after  he  is  notified  of  his  election  or  appoint- 
ment, must  take  and  subscribe,  before  some  Justice  of  the  Peace, 
or  commissioner  of  deeds,  the  oath  of  office  prescribed  by  the 
constitution.  The  oath  must  be  administered  without  reward, 
and  the  Justice  or  commissioner,  before  whom  the  same  is  ta- 
ken, is  required  also,  without  reward,  to  certify,  in  writing,  the 
day  and  year  when  the  same  was  taken,  and  to  deliver  such 
certificate  to  the  person  by  whom  the  oath  was  made.  Such 
person,  within  eight  days  thereafter,  must  cause  the  certificate  to 

35 


546  OF  COUNTY  AND  TOWN  OFFICERS. 

be  filed  in  the  office  of  the  town  clerk.  If  a  person  appointed 
to  the  office  of  commissioner  of  highways,  does  not  take  and 
subscribe  such  oath,  and  cause  the  certificate  thereof,  to  be  filed 
as  above  required,  such  neglect  will  be  deemed  a  refusal  to 
serve. 

Every  commissioner  of  highways  is  required,  before  entering 
upon  his  duties,  and  within  ten  days  after  notice  of  his  election 
or  appointment,  to  execute  to  the  supervisor  of  his  town  a  bond 
with  two  sureties,  to  be  approved  by  the  supervisor  by  endorse- 
ment thereon,  and  filed  with  him,  in  the  penal  sum  of  one  thou- 
sand dollars,  conditioned  that  he  will  faithfully  discharge  his 
duties  as  such  commissioner,  and  within  ten  days  after  the  ex- 
piration of  his  term  of  office,  pay  over  to  his  successor  what 
money  may  be  remaining  in  his  hands  as  such  commissioner, 
and  render  to  such  successor  a  true  account  of  all  moneys  re- 
ceived and  paid  out  by  him  as  such  commissioner.  (1  R.  S. 
397,  sec.  42.) 

FORM    OF    commissioner's    BOND. 

Know  all  men  by  these  presents,  that  we,  Henry  Eldridge, 
Alfred  Merrill,  and  Joseph  Ely,  of  the  town  of  Chenango,  in 
the  county  of  Broome,  are  held  and  firmly  bound  unto  Thomas 
Jackson,  supervisor  of  said  town,  in  the  penal  sum  of  one  thou- 
sand dollars,  to  be  paid  to  the  said  Thomas  Jackson,  or  his  suc- 
cessor in  office  ;  to  which  payment  well  and  truly  to  be  made, 
we  bind  ourselves,  our  heirs,  executors,  and  administrators, 
jointly  and  severally,  firmly  by  these  presents.  Sealed  with  our 
seals,  and  dated  the day  of ,  1849. 

The  condition  of  this  obligation  is  such,  that  whereas  the 
above  bounden  Henry  Eldridge,  has  been  duly  elected  (or  ap- 
pointed) commissioner  of  highways,  in  and  for  the  said  town  of 
Chenango :  Now,  therefore,  if  the  said  Henry  Eldridge  shall 
faithfully  discharge  his  duties  as  such  commissioner,  and  within 
ten  days  after  the  expiration  of  his  term  of  office  pay  over  to  his 
successor  what  money  may  be  remaining  in  his  hands  as  such 
commissioner,  and  render  to  such  successor  a  true  account  of  all 
moneys  received  and  paid  out  as  such  commissioner,  then  this 
obligation  to  be  void,  otherwise  in  force. 

Hknry  l"h,nRii)OE,  [r-.  s.] 

Ar.KRKJ)    MlillRILI-,    [l.  s.] 

JosEi'ii  Ely,  [l.  s.] 


OF  COUNTY  AND  TOWN  OFFICERS.  547 

Sealed,  signed  and  delivered 
in  presence  of 

Cyrus  Strong. 

Upon  the  foregoing,  the  supervisor  must  endorse  his  approval 
thus : — 

"  I  approve  of  the  within  bond,  and  the  sureties  therein  named. 

Dated  at  Binghamton,  the day  of ,  1849. 

Thomas  Jackson, 
Supervisor  of  the  Town  of  Chenango." 

If  any  person  chosen  or  appointed  to  the  office  of  commis- 
sioner of  highways,  refuses  to  serve,  he  forfeits  to  the  town  the 
sum  of  fifty  dollars.     (1  R.  S.  397,  sec.  42.) 

The  commissioners  of  highways  in  the  several  towns  in  the 
state  have  the  care  and  superintendence  of  the  highways  and 
bridges  therein;  and  it  is  their  duty — 1.  To  give  directions  for 
the  repairing  of  the  roads  and  bridges  within  their  respective 
towns ;  2.  To  regulate  the  roads  already  laid  out,  and  to  alter 
such  of  them  as  they,  or  a  majority  of  them,  shall  deem  incon- 
venient ;  3.  To  cause  such  of  the  roads  used  as  highways  as 
shall  have  been  laid  out,  but  not  sufliciently  described,  and  such 
as  shall  have  been  used  for  twenty  years,  but  not  recorded,  to 
be  ascertained,  described,  and  entered  of  record,  in  the  town 
clerk's  office  ;  4.  To  cause  the  highways,  and  the  bridges  which 
are  or  may  be  erected  over  streams  intersecting  highways,  to  be 
kept  in  repair  ;  5.  To  divide  their  respective  towns  into  so  many 
road  districts  as  they  shall  judge  convenient,  by  writing  under 
their  hands,  to  be  lodged  with  the  town  clerk,  and  by  him  to  be 
entered  in  the  town  book  ;  such  division  to  be  made  annually, 
if  they  shall  think  it  necessary,  and  in  all  cases  to  be  made  at 
least  ten  days  before  the  annual  town  meeting ;  6.  To  assign  to 
each  of  the  said  road  districts  such  of  the  inhabitants  liable  to 
work  on  highways  as  they  shall  think  proper,  having  regard  to 
proximity  of  residence  as  much  as  may  be ;  and,  7.  To  require 
the  overseers  of  highways,  from  time  to  time,  and  as  often  as 
they  shall  deem  necessary,  to  warn  all  persons  assessed  to  work 
on  highways,  to  come  and  work  thereon  with  such  implements^ 
carriages,  cattle,  or  sleds,  as  the  said  commissioners,  or  any  one 
of  them,  shall  direct.     (1  R.  S.  616,  sec.  1.) 

8.  The  commissioners  of  highways  have  power  to  lay  out,  on 


548  OF  COUNTY  AND  TOWN  OFFICERS. 

actual  survey,  such  new  roads  in  their  respective  towns  as  they 
may  deem  necessary  and  proper ;  and  to  discontinue  such  old 
roads  and  highways  as  shall  appear  to  them,  on  the  oaths  of 
twelve  freeholders  of  the  same  town,  to  have  become  unneces- 
sary.    (Sec.  2.) 

9.  The  commissioners  of  highways  of  each  town  must  render 
to  the  hoard  of  town  auditors  at  their  annual  meeting  for  audit- 
ing the  accounts  of  town  officers,  an  account  in  writing,  stating, 
1.  The  labor  assessed  and  performed  in  such  town  ;  2.  The 
sums  received  by  such  commissioners  for  fines  and  commuta- 
tions, or  otherwise  ;  3.  The  improvements  which  have  been 
made  on  the  roads  and  bridges  in  their  town  during  the  year 
immediately  preceding  such  report,  and  an  account  of  the  state 
of  such  roads  and  bridges  ;  and,  4.  A  statement  of  the  improve- 
ments necessary  to  be  made  on  such  roads  and  bridges,  and  an 
estimate  of  the  probable  expense  of  making  such  improvements 
beyond  what  the  labor  to  be  assessed  in  that  year  will  accom- 
plish.    (1  R.  S.  617,  sec.  3.) 

10.  They  must  furnish  and  deliver  to  the  supervisor  of  their 
own  town  a  statement  of  such  necessary  improvements  as  the 
roads  and  bridges  therein  will  require  for  the  year,  and  the  pro- 
bable expense  thereof,  which  he  is  to  lay  before  the  board  of  su- 
pervisors at  their  next  meeting.  The  board  must  cause  the 
amount  so  estimated  to  be  assessed,  levied  and  collected  in  the 
town  the  same  as  other  town  charges  ;  but  such  sum  cannot 
exceed  two  hundred  and  fifty  dollars.  (Sec.  4.)  The  law  re- 
quires them  to  erect,  or  cause  to  be  erected,  mile  boards  or  mile 
stones,  on  the  post  roads,  and  on  such  other  public  roads,  in  their 
towns,  as  they  may  think  proper  ;  and  also  guide  posts  or  boards, 
with  proper  inscriptions  and  devices,  at  the  intersections  of  such 
roads.     (Sees.  5  and  9.) 

When  the  quantity  of  labor  assessed  on  the  inhabitants  of  any 
road  district  by  the  commissioners  shall  be  deemed  insufiicient, 
by  the  overseer  of  such  district,  to  keep  the  roads  therein  in  re- 
pair, it  is  the  duty  of  such  overseer  to  make  anollier  assessment 
on  the  actual  residents  in  such  district,  in  the  same  proportion, 
as  near  as  may  be,  and  not  exceeding  one-third  of  the  number 
of  days  assessed  in  the  same  year  by  the  connnissioncrs  on  the 
inhabitants  of  such  district  ;  and  the  labor  so  assessed  by  an 
overseer,  must  be  pcrfurmcd  or  connuulcd  for,  in  like  manner,  as 


OF  COUNTY  AND  TOWN  OFFICERS.  549 

if  the  same  had  been  assessed  by  the  commissioners  of  high- 
ways.    (Sec.  8.) 

The  commissioners  of  highways,  whenever  they  shall  think 
it  necessary  or  useful,  may  direct  and  empower  any  overseer  of 
highways,  in  their  respective  towns,  to  procure  a  good  and  suf- 
ficient iron  or  steel-shod  scraper  and  plough,  or  either  of  them, 
for  the  use  of  his  road  district ;  to  be  paid  for  by  the  moneys 
arising  from  commutations  and  fines  within  such  district.  (1 
Ft.  S.  618,  sec.  11.) 

It  is  the  duty  of  the  commissioners  of  highways  of  each  town, 
whenever  any  person  resident  in  their  town  makes  complaint 
that  any  overseer  of  highways  in  such  town  has  refused  or  ne- 
glected to  perform  any  of  the  duties  required  of  him,  and  gives 
or  offers  to  such  commissioners  sufficient  security  to  indemnify 
them  against  the  costs  which  may  be  incurred  in  prosecuting 
for  the  penalty  annexed  to  such  refusal  or  neglect,  forthwith  to 
prosecute  such  overseer  for  the  offence  complained  of.  If  the 
commissioners  refuse  or  neglect  to  prosecute  for  such  penalty 
they  forfeit,  in  every  such  case,  the  sum  of  ten  dollars,  to  be  re- 
covered by  the  person  who  makes  the  complaint,  and  gives  or 
offers  security.     (Sees.  17  and  18.) 

Commissioners  of  highways  are  authorized  to  administer  oaths 
to  any  witnesses  or  juries,  in  proceedings  which  may  be  had  by 
or  before  them.     (Laws,  1847,  ch.  455.) 

Whenever  the  commissioners  of  highways  of  any  town  in  the 
state  are  of  opinion  that  the  sum  of  two  hundred  and  fifty  dol- 
lars will  be  insufficient  to  pay  the  expenses  actually  necessary 
for  the  improvement  of  roads  and  bridges,  they  may  apply  in 
open  town  meeting  for  a  vote  authorizing  such  additional  sum 
to  be  raised  as  they  may  deem  necessary,  not  exceeding  two 
hundred  and  fifty  dollars.  Before  making  application,  the  com- 
missioners must  give  notice  of  their  intention  so  to  apply  by 
posting  the  same  in  a  conspicuous  manner,  in  at  least  five  of  the 
most  public  places  in  the  town,  at  least  four  weeks  next  prece- 
ding the  annual  town  meeting.  The  notice  must  specify  the 
amount  to  be  applied  for,  and  the  purposes  for  which  the  same 
is  intended  to  be  appropriated,  with  the  probable  amount  neces- 
sary to  be  expended  at  each  place,  if  there  is  more  than  one.  (1 
R.  S.  389,  sees.  10  and  11.)  Whenever  any  application  for  a 
grant  of  money,  for  the  purposes  mentioned  above,  is  made  to  any 
town  meeting,  it  is  the  duty  of  the  commissioners  making  the 


gSO  OF  COUNTY  AND  TOWN  OFFICERS. 

same  to  exhibit  a  statement  of  their  accounts,  and  an  estimate 
of  the  expenses  necessary  for  the  improvement  of  roads  and 
bridges  in  such  town  the  ensuing  year.     (Sec.  12.) 

Whenever  the  woods  in  any  town  are  on  lire,  it  is  the  duty  of 
the  Justices  of  the  Peace,  the  supervisor,  and  the  commissioners 
of  highways  of  such  town,  and  of  each  of  them,  to  order  such 
and  so  many  of  the  inhabitants  of  such  town,  hable  to  work  on 
the  highways,  and  residing  in  the  vicinity  of  the  place  where 
the  fire  occurs,  as  they  shall  severally  deem  necessary,  to  repair 
to  the  place  where  such  fire  prevails,  and  there  to  assist  in  extin- 
guishing the  same,  or  in  stopping  its  progress.  (1  R.  S.  876, 
sec.  2.) 

It  is  enacted,  that  if  any  person  so  ordered  to  repair  to  and 
assist  in  manner  aforesaid,  shall  refuse  or  neglect  to  comply  with 
any  such  order,  he  shall  forfeit  and  pay  the  sum  of  fifty  dollars, 
and  shall  also  be  deemed  guilty  of  a  misdemeanor, — and,  on 
conviction,  shall  be  punished  by  fine  or  imprisonment,  or  both, 
at  the  discretion  of  the  court ;  such  fine  not  to  exceed  one 
hundred  dollars,  and  such  imprisonment  not  to  exceed  sixty 
days,  (Sec.  3.)  The  forfeiture  so  recovered  must  be  applied  as 
a  reward  to  such  person  or  persons  as  the  officers  above  men- 
tioned, or  a  majority  of  them,  shall  deem  best  entitled  thereto, 
for  superior  exertions  in  extinguishing  or  stopping  the  progress 
of  the  fire.     (Sec.  4.) 

Actions  may  be  brought  by  commissioners  of  highways,  to 
enforce  any  liability,  or  any  duty  enjoined  by  law  to  such  offi- 
cers, upon  any  contract  lawfully  made  with  them  or  their  pre- 
decessors, in  their  official  character  ;  to  recover  any  penalties  or 
forfeitures  given  to  such  officers,  and  to  recover  damages  for  any 
injuries  done  to  the  property  or  rights  of  such  officers.  Such 
actions  may  be  brought  by  such  officers  in  the  name  of  their 
respective  offices,  notwithstanding  the  contract  or  obligation  on 
which  the  same  is  founded  may  have  been  made  with  or  to  any 
predecessors  of  such  officers,  in  their  individual  names  or  other- 
wise, and  notwithstanding  any  right  of  action  may  have  accrued 
previous  to  the  time  when  the  officers  commencing  such  suit 
entered  upon  the  execution  of  the  duties  of  their  office.  (2  R. 
S.  50^),  sees.  100  and  107.) 

Actions  against  commissioners  of  highways  must  be  brought 
against  tliem  individually,  specifying  in  the  process,  pleadings, 
and  procceding.s,  their  name  of  office ;  and  such  actions  may  be 


OF  COUNTY  AND  TOWN  OFFICERS.  551 

commenced  in  the  same  manner  as  against  individuals.  (Sec. 
110.) 

Whenever  the  term  of  office  of  any  commissioner  of  high- 
ways expires,  and  another  person  is  elected  or  appointed  to  such 
office,  it  is  the  duty  of  such  succeeding  commissioner,  immedi- 
ately after  he  shall  have  entered  on  the  duties  of  his  office,  to 
demand  of  his  predecessor  all  the  records,  books,  and  papers 
under  his  control  belonging  to  such  o0ice.  If  such  officer  re- 
sign, and  another  officer  is  elected  or  appointed  in  his  stead,  the 
person  so  elected  or  appointed  must  make  the  demand  of  the 
person  resigning.  It  is  the  duty  of  every  person  so  going  out  of 
office,  whenever  required,  to  deliver  upon  oath  all  the  records, 
books,  and  papers  in  his  possession  or  under  his  control,  belong- 
ing to  the  office  held  by  him, — which  oath  may  be  administered 
by  the  officer  to  whom  the  delivery  is  made.  It  is  also  the  duty 
of  every  commissioner  of  highways,  so  going  out  of  office,  at 
the  same  time  to  pay  over  to  his  successor  the  balance  of  mo- 
neys remaining  on  his  hands,  as  ascertained  by  the  auditors  of 
town  accounts.     (1  R.  S.  410,  411,  sees.  9,  10,  and  11.) 

Upon  the  death  of  any  of  the  commissioners,  the  successors 
or  successor  of  such  officer  must  make  the  demand  as  above 
provided,  of  the  executors  or  administrators  of  such  deceased 
officer ;  and  it  is  the  duty  of  such  executors  or  administrators 
to  deliver,  upon  the  like  oath,  all  records,  books  and  papers  in 
their  possession,  or  under  their  control,  belonging  to  the  office 
held  by  their  testator  or  intestate.     (Sec.  12.) 

If  any  person  so  going  out  of  office,  or  his  executors  or  ad- 
ministrators, refuses  or  neglects,  when  lawfully  required,  to  de- 
liver such  records,  books  or  papers,  he  forfeits  to  the  town,  for 
every  such  refusal  or  neglect,  the  sum  of  two  hundred  and  fifty 
dollars.     (Sec.  13.) 

18.   Overseers  of  Highiuays. 

There  are  as  many  overseers  of  highways  chosen  in  each 
town,  at  the  annual  town  meeting,  as  there  are  road  districts 
therein.  (1  R.  S.  387,  sec.  4.)  If  any  person  chosen  to  the 
office  of  overseer  of  highways  refuses  to  serve,  he  forfeits  to  the 
town  the  sum  of  ten  dollars.  (Id.  397,  sec.  45.)  When  any 
person  so  chosen  refuses  to  serve,  or  if  his  office  becomes  vacant, 
the  commissioners  of  highways  of  the  town  must,  by  warrant, 


552  OF  COUNTY  AND  TOWN  OFFICERS. 

under  their  hands,  appoint  some  other  person  in  his  stead ;  and 
the  overseer  so  appointed  will  have  the  same  powers,  be  subject 
to  the  same  orders,  and  liable  to  the  same  penalties,  as  overseers 
chosen  in  town  meetings.  The  commissioners  making  the  ap- 
pointment must  cause  the  warrant  to  be  forthwith  filed  in  the 
office  of  ttie  town  clerk,  who  must  give  notice  to  the  person  ap- 
pointed, as  in  other  cases.     (1  R.  S.  619,  sees.  14  and  15.) 

It  is  the  duty  of  the  overseers  of  highways  in  each  town — 
1.  To  repair  and  keep  in  order  the  highways  within  the  several 
districts  for  which  they  shall  have  been  elected ;  2.  When  so 
required  by  the  commissioners  of  highways,  or  any  one  of  them, 
to  warn  all  persons  assessed  to  work  on  the  highways  in  their 
respective  districts,  to  come  and  work  thereon  ;  3.  To  cause  the 
noxious  weeds  on  each  side  of  the  highway  within  their  respec- 
tive districts  to  be  cut  down  or  destroyed  twice  in  each  year — 
once  before  the  first  day  of  July,  and  again  before  the  first  day 
of  September ;  the  requisite  labor  to  be  considered  highway 
work  ;  and,  4.  To  collect  all  fines  and  commutation  money,  and 
to  execute  all  lawful  orders  of  the  commissioners.  (Id.  617, 
sec.  6.) 

It  is  the  further  duty  of  the  overseers,  once  in  every  month, 
from  the  first  day  of  April  until  the  first  day  of  December,  to 
cause  all  the  loose  stones  lying  in  the  beaten  track  of  every  road 
within  their  respective  districts,  to  be  removed,  and  to  cause  the 
monuments  erected  or  to  be  erected  as  the  boundaries  of  high- 
ways, to  be  kept  up  and  renewed,  so  that  the  extent  of  such 
roads  may  be  publicly  known.     (Sec.  7.) 

It  is  the  duty  of  the  overseers  of  highways  of  each  town  to 
maintain  and  keep  in  repair,  at  the  expense  of  the  town,  such 
guide  posts  as  may  have  been  erected  by  order  of  the  commis- 
sioners, within  the  limits  of  the  districts  for  which  they  shall 
have  been  respectively  elected  or  appointed.     (Sec.  10.) 

If  any  overseer  is  employed  more  days  in  executing  the  sev- 
eral duties  enjoined  on  him  than  he  is  assessed  to  work  on  the 
highway,  he  must  be  paid  for  the  excess  at  the  rate  of  seventy- 
five  cents  per  day,  and  be  allowed  to  retain  the  same  out  of  the 
moneys  wiiich  may  come  into  his  hands  for  fines ;  but  he  can- 
not be  permitted  to  commute  for  the  days  he  is  assessed.  (Sec. 
13.) 

Every  overseer  of  highways  who  refuses  or  neglects  either — 
I.  To  warn  the  people  assessed  to  work  on  the  highways  when 


OF  COUNTY  AND  TOWN  OFFICERS.  553 

he  shall  have  been  required  so  to  do  by  the  commissioners,  or 
either  of  them ;  2.  To  collect  the  moneys  that  may  arise  from 
fines  or  commutations  ;  3.  To  perform  any  of  the  duties  which 
may  be  enjoined  on  him  by  the  commissioners  of  highways  of 
his  town,  and  for  the  omission  of  which  a  penalty  is  not  other- 
wise provided ;  for  every  such  refusal  or  neglect,  forfeits  the 
sum  often  dollars,  to  be  sued  for  by  the  commissioners  of  high- 
ways of  the  town,  and,  when  recovered,  to  be  applied  by  them 
in  making  the  roads  and  bridges  therein.     (1  R.  S.  619,  sec.  16.) 

Each  of  the  overseers  of  highways  is  required  to  deliver  to 
the  clerk  of  the  town,  within  sixteen  days  after  his  election  or 
appointment,  a  list  subscribed  by  such  overseer,  of  the  names  of 
all  the  inhabitants  in  his  road  district  who  are  liable  to  work  on 
the  highways.     (Sec.  21.) 

The  overseers  are  required  to  give  at  least  twenty-four  hours 
notice  to  all  persons  assessed  to  work  on  the  highways,  and  re- 
siding within  the  limits  of  their  respective  districts,  of  the  time 
and  place  when  and  where  they  are  to  appear  for  that  purpose, 
and  with  what  implements  ;  but  no  person  being  a  resident  of 
the  town  can  be  required  to  work  on  any  highway  other  than  in 
the  district  in  which  he  resides,  unless  he  elect  to  work  in  some 
district  where  he  has  land.     (I  R.  S.  624,  sec.  41.) 

It  is  also  their  duty  to  notify  the  agent  of  every  non-resident 
landholder  whose  lands  are  assessed,  (if  the  agent  reside  in  the 
town  where  the  assessment  is  made,)  of  the  number  of  days 
such  non-resident  is  assessed,  and  of  the  time  when,  and  the 
place  where,  the  labor  is  to  be  performed — which  notice  must 
be  given  at  least  five  days  previous  to  the  time  appointed. 
(Sec.  42.) 

If  the  overseer  cannot  ascertain  that  such  non-resident  has 
an  agent  within  the  town,  he  must  affix  a  written  notice  on  the 
outer  door  of  the  building  in  which  the  last  town  meeting  in 
such  town  was  held,  containing  a  list  of  the  names  of  the  non- 
residents, when  known,  and  a  description  of  the  tracts  of  land 
comprised  in  his  list,  together  with  the  number  of  days'  labor 
assessed  on  such  tract,  and  a  specification  of  the  time  when,  and 
the  place  where,  such  labor  is  to  be  performed — which  notice 
must  be  posted  at  least  twenty  days  before  the  time  appointed 
for  performing  the  labor.     (Sec.  43.) 

Every  overseer  of  highways  is  required,  on  or  before  the  first 
day  of  October  in  each  year,  to  make  out  and  deliver  to  the  su- 


554  OF  COUNTY  AND  TOWN  OFFICERS. 

pervisor  of  his  town  a  list  of  all  the  lands  of  non-residents,  and 
of  persons  unknown,  which  were  taxed  on  his  list,  but  on  which 
the  labor  has  not  been  paid,  and  the  amount  of  labor  unpaid — 
on  which,  he  must  make  and  subscribe  an  affidavit  before  some 
Justice  of  the  Peace  of  the  town,  that  he  has  given  the  requi- 
site notices,  and  that  the  labor  has  not  been  performed.  If  he 
refuse  or  neglect  so  to  do,  he  forfeits  five  dollars  for  each  offence 
and  the  amount  of  taxes  for  such  labor,  at  the  rate  of  sixty-two 
and  a  half  cents  per  day,  to  be  recovered  by  the  commissioners 
of  highways,  and  applied  to  making  and  improving  roads  and 
bridges  in  the  town.  It  is  the  duty  of  the  supervisor  of  the 
town  to  receive  such  list,  and  lay  it  before  the  board  of  supervi- 
sors of  the  county.     (1  R.  S.  626,  sees.  56,  57,  and  58.) 

It  is  the  duty  of  the  board,  at  their  next  meeting,  to  cause  the 
amount  of  such  arrearages  of  labor  (estimating  a  day  at  sixty- 
two  and  a  half  cents,)  to  be  levied  and  collected  of  the  lands  so 
returned,  and  to  order  it  to  be  paid  to  the  commissioners  of  the 
town,  to  be  applied  on  the  roads  and  bridges  of  the  district  where 
the  labor  was  assessed.     (Sec.  59.) 

Every  overseer  must,  on  the  second  Tuesday  before  the  an- 
nual town  meeting  in  his  town,  within  the  year  for  which  he  is 
chosen,  render  to  one  of  the  commissioners  of  the  town,  an  ac- 
count in  writing,  verified  by  his  oath,  which  the  commissioner 
may  administer,  containing  1 .  The  names  of  all  persons  assessed 
to  work  on  the  highways  in  his  district.  2.  The  names  of  all 
who  have  actually  worked  on  the  highways,  and  the  number  of 
days  worked.  3.  The  names  of  all  who  have  been  fined,  and  the 
sums.  4.  The  names  of  all  who  have  commuted,  and  how  the 
moneys  arising  from  fines  and  commutations,  have  been  expen- 
ded. 5.  A  list  of  all  the  lands  which  he  has  returned  to  the 
supervisor,  for  non-payment  of  taxes,  and  the  amount  of  tax  in 
each  tract  of  land  so  returned.     (Sec.  60.) 

He  must  also,  then  and  there  pay  to  the  commissioner  all 
moneys  in  his  hands,  to  be  applied  to  the  improvement  of  roads 
and  bridges  in  his  town.  For  any  refusal  or  neglect  to  render 
such  account,  or  pay  such  moneys,  he  forfeits  five  dollars,  to  be 
recovered  with  the  moneys  in  his  hands,  by  the  commissioners, 
to  be  applied  to  the  roads  and  bridges  in  the  town.  (Sees.  61 
and  62.) 

Whenever  it  appears  from  the  animal  return  of  any  overseer 
of  highways,  that  any  person  assessed  to  work  therein,  (other 


OF  COUNTY  AND  TOWN  OFFICERS.  555 

than  non  residents,)  has  neglected  to  work  his  full  time,  and  has 
not  commuted  therefor,  or  ot"herwise  satisfied  such  deficiency, 
the  commissioners  are  to  re-assess  the  same  at  the  next  assess- 
ment, and  add  it  to  the  annual  assessment  of  such  person.  But 
this  does  not  exonerate  an  overseer  from  any  penalty  which  he 
may  have  incurred  for  any  neglect  of  duty.  (1  R.  S.  627,  sees. 
63  and  64.) 

19.   Overseers  of  the  Poor. 

There  are  one  (or  two)  overseers  of  the  poor  in  each  town, 
chosen  at  the  annual  town  meeting.     (I  R.  S.  387,  sec.  4.) 

The  father,  mother,  and  children,  who  are  of  sufficient  ability, 
of  any  poor  person  who  is  blind,  old,  lame,  impotent,  or  decrepit, 
so  as  to  be  unable  to  maintain  himself,  is  required  to  relieve 
and  maintain  such  person,  in  such  manner  as  the  overseers  of 
the  poor  of  the  town  may  approve.  Upon  failure  to  do  so,  it  is 
the  duty  of  the  overseer  to  apply  to  the  Court  of  Sessions  of  the 
county  where  such  relative  dwells,  for  an  order  to  compel  such 
relief;  giving  fourteen  days'  notice,  in  writing,  of  such  applica- 
tion, to  the  person  against  whom  the  order  is  sought  to  be  ob- 
tained.    (I  R.  S.  782.) 

The  court,  upon  a  hearing,  may  order  such  of  the  relatives 
as  appear  able,  to  maintain  such  poor  person,  specifying  the  sum 
to  be  paid  for  that  purpose  weekly.  Such  relatives  are  liable  as 
follows  :  1.  The  father  is  required  to  give  such  relief  and  sup- 
port ;  if  there  be  none,  or  he  be  unable,  then  the  children  of  such 
poor  person  ;  if  there  be  none,  or  they  be  not  able,  then  the 
mother.  If  a  relative  is  unable  wholly  to  maintain  such  poor 
person,  but  can  do  part,  the  court  may  direct  two  or  more  of  dif- 
ferent degrees,  to  render  such  support,  and  prescribe  the  propor- 
tion in  which  they  must  contribute  for  that  purpose  ;  or  if  the 
relatives  are  not  able  wholly  to  give  such  support,  but  can  do 
part,  the  court  may  direct  them  to  contribute  for  that  purpose, 
according  to  their  ability.  The  costs  of  such  application  are  to 
be  paid  by  the  relatives  against  whom  any  order  may  be  made  ; 
and  payment  thereof,  and  obedience  to  the  order  of  maintenance, 
may  be  enforced  by  attachment.  (1  R.  S.  782,  783,  sees.  3,  4,  5 
and  6.) 

Any  person  neglecting  to  maintain  such  poor  person,  or  to  do 
it  in  such  manner  as  the  overseers  may  approve,  or  neglecting 


556  OF  COUNTY  AND  TOWN  OFFICERS. 

in  any  manner  to  obey  the  order  of  the  court,  is  hable  to  an  ac- 
tion by  the  overseers,  and  for  costs  of  suit.     (Sec.  7.) 

When  any  father,  or  mother  being  a  widow,  or  hving  separate 
from  her  husband,  shall  abscond  from  their  children,  or  a  hus- 
band from  his  wife,  leaving  them  likely  to  become  chargeable 
upon  the  public,  the  overseers  of  the  poor  of  the  town  where 
such  wife  and  children  are,  may  apply  to  any  two  Justices  of 
the  Peace  of  the  county  in  which  such  absconding  person  may 
have  any  real  or  personal  estate,  for  a  warrant  to  seize  the  same  ; 
to  which,  when  seized,  by  virtue  of  such  warrant,  the  overseers 
have  the  same  right  and  title  as  such  person  had  at  the  time  of 
his  or  her  departure.  All  sales  or  transfers  of  such  property, 
made  after  the  issuing  of  such  warrant,  whether  in  payment  of 
an  antecedent  debt,  or  for  a  new  consideration,  are  void.  The 
overseers  must  immediately  make  an  inventory  of  the  property 
seized,  and  return  the  same,  together  with  their  proceedings,  to 
the  next  Court  of  Sessions  of  the  county  where  they  reside.  If 
the  court  confirm  them,  they  are  to  direct  what  part  of  the  per- 
sonal property  shall  be  sold,  and  how  much  of  the  proceeds,  and 
of  the  rents  and  profits  of  the  real  estate,  if  any,  must  be  ap- 
plied towards  supporting  such  children  or  wife  of  the  person  ab- 
sconding.    (Sees.  8,  9,  10.) 

If  the  party  return,  and  support  such  wife  and  children,  or 
give  security  satisfactory  to  any  two  Justices  of  the  town,  or  to 
the  overseers  of  the  poor,  that  such  wife  and  children  shall  not 
become  chargeable  to  the  town  or  county,  the  warrant  is  to  be 
discharged  by  order  of  the  Justices,  and  the  property  restored  to 
the  party.     (Sec.  11.) 

The  overseers  must  sell  at  public  vendue,  any  property  so  or- 
dered to  be  sold,  and  receive  the  rents  and  profits  of  the  real  es- 
tate of  the  person  so  absconding,  and  in  those  towns  which  sup- 
port their  own  poor,  apply  it  to  maintaining  such  wife  or  chil- 
dren. They  must  account  to  the  Court  of  Sessions  for  such 
money,  from  time  to  time.  In  those  counties  where  all  the  poor 
arc  a  charge  upon  the  county,  the  superintendents  of  the  poor 
have  the  same  powers  and  rights  as  arc  above  given  to  the  over- 
seers, and  arc  subject  to  the  same  obligations  in  respect  to  com- 
pelling relatives  to  maintain  paupers,  and  in  respect  to  the  seiz- 
ure of  property  of  any  person  absconding  or  abandoning  his  wife 
or  family.     (1  R.  S.  784,  sees.  12  and  13.) 

All  moneys  collected  by  the  overseers  of  any  town  in  a  county 


OF  COUNTY  AND  TOWN  OFFICERS.  557 

where  the  poor  are  all  a  county  charge,  from  the  relatives  of  any- 
poor  person  ;  or  from  the  sale  of  personal,  or  from  the  rents  and 
profits  of  real  estate,  of  any  person  absconding  and  abandoning 
his  family  ;  or  for  any  fines,  penalties,  or  forfeitures  ;  or  on  any 
bond  or  security  given  for  the  indemnity  of  the  overseers  of  the 
town  ;  and  all  other  moneys  received  in  their  official  capacity, 
must  be  paid  over  within  thirty  days  to  the  county  treasurer. 
For  any  neglect,  the  county  treasury  may  recover  the  same,  with 
ten  per  cent,  interest,  from  the  time  they  should  have  been  paid. 
(Id.  787,  sec.  24.) 

The  board  of  supervisors  of  any  county,  may  abolish  the  dis- 
tinction between  town  and  county  poor,  and  make  the  expense 
a  county  charge.  In  case  of  such  determination,  the  clerk  of 
the  board  must  serve  a  copy  thereof  on  the  clerk  of  each  town, 
village,  or  city  in  the  county,  and  give  notice  thereof  to  the  over- 
seers of  the  poor,  who,  within  three  months  thereafter,  must  pay 
over  all  moneys  in  their  hands,  to  the  county  treasurer,  after  dis- 
charging all  demands  against  them  as  overseers.  If  they  ne- 
glect, the  county  treasurer  may  recover  the  same  of  them,  with 
interest  from  the  time  it  should  have  been  paid  over.     (Sec.  25.) 

Every  poor  person  Avho  is  blind,  lame,  old,  sick,  impotent,  or 
decrepit,  so  as  to  be  unable  to  maintain  himself,  is  to  be  main- 
tained, in  those  counties  where  there  is  a  distinction  between  the 
town  and  county  poor,  by  the  town  in  which  he  has  gained  a 
settlement ;  and  if  he  have  no  settlement  then  in  the  county 
where  he  may  be.     (1  R.  S.  792,  sec.  46.) 

Every  adult,  not  being  a  pauper,  having  resided  in  any  town 
for  one  year,  and  his  family  are  deemed  settled  in  such  town. 
A  minor  may  be  emancipated  from  his  or  her  father,  and  give  a 
settlement,  if  a  female,  by  being  married,  and  living  for  one  year 
with  her  husband,  when  his  settlement  will  also  be  that  of  his 
wife ;  if  a  male,  by  being  married  and  living  one  year  separate 
from  his  father  ;  or  by  being  bound  an  apprentice,  and  serving 
one  year  as  such  ;  or  being  hired,  and  serving  for  one  year,  and 
receiving  the  wages  himself.  Until  a  poor  person  have  gained  a 
settlement  in  his  own  right,  the  settlement  of  the  father  or  mother 
is  deemed  his  ;  but  no  child  born  in  any  place  used  for  keeping 
the  poor  of  any  town,  city,  or  county,  or  while  the  mother  is  a 
pauper,  can  give  a  settlement,  merely  by  reason  of  the  place  of 
its  birth.  No  pauper  can  be  removed  from  one  city  or  town  to 
another,  but  must  be  supported  by  the  town  in   which  he  has 


558  OF  COUNTY  AND  TOWN  OFFICERS. 

gained  a  settlement ;  if  he  has  gained  no  such  settlement,  then 
by  the  county  in  which  he  has  become  sick  or  disabled  ;  if  he  be 
in  a  county  where  the  distinction  between  town  and  county 
poor  be  abolished,  he  must  be  supported  by  such  county  ;  if  he 
be  in  a  town,  in  a  county  where  the  respective  towns  are  liable 
to  support  their  poor,  and  have  gained  a  settlement  in  some  other 
town  of  that  county,  he  must  be  supported  at  the  expense  of  the 
town  where  he  may  be  ;  and  the  overseers  thereof  may  notify  in 
writing,  the  overseers  of  the  town  where  he  belongs,  or  one  of 
them,  requiring  them  to  provide  for  the  support  of  such  piiuper  ; 
if  they  do  not  within  ten  days  after  such  notice,  give  notice  in 
writing  to  the  overseers  of  the  town  where  such  pauper  then  is, 
that  they  will  appear  before  the  county  superintendents,  specify- 
ing a  place  and  day,  which  must  not  be  lesss  than  ten,  nor  more 
than  thirty  days,  from  the  time  of  service  thereof,  and  contest 
the  settlement  of  such  pauper,  they  and  their  town  are  forever 
precluded  from  denying  or  contesting  the  same.  The  superin- 
tendents, on  hearing  and  determining  such  controversy,  may 
award  costs,  not  exceeding  ten  dollars,  to  the  prevailing  party, 
which  may  be  recovered  by  an  action,  from  the  opposite  party, 
and  their  decision  is  final  and  conclusive.     (1  R.  S.  792,  793.) 

If  the  party  against  whom  the  superintendents  decide,  refuse 
or  fail  to  take  and  support  such  pauper,  the  charge  of  giving 
notice,  and  all  the  expenses  of  his  maintenance,  after  being 
allowed  by  the  superintendents,  must  be  laid  before  the  board 
of  supervisors  at  their  annual  meeting,  and  be  by  them  annu- 
ally added  to  the  tax  laid  upon  the  town  to  which  such  pauper 
belongs,  so  long  as  such  expense  is  incurred.  The  said  moneys 
when  collected,  must  be  paid  to  the  county  treasurer,  and  be  by 
him  credited  to  the  account  of  the  town  incurring  such  ex- 
pense.    (Id.) 

In  a  county  where  the  towns  are  obliged  to  support  their  own 
poor,  no  pauper  can  be  charged  to  the  county  without  the  sanc- 
tion of  the  superintendents.  If  a  pauj)cr  be  sent  to  the  poor 
house  of  such  county,  and  the  superintendents  arc  of  opinion 
that  he  has  a  legal  settlement  in  any  town  thereof,  they  must 
within  thirty  days  tiicreafter,  give  notice  to  the  overseers  of  the 
town,  that  his  support  will  be  charged  to  such  town,  unless 
they,  within  not  less  than  twenty  days,  show  cause  to  the  con- 
trary.    (I  R.  .S.  790,  791.)     On  the  application  of  the  overseers, 


OF  COUNTY  AND  TOWN  OFFICERS.  559 

the  superintendents  must   rc-cxamine  and  decide  the  matter, 
which  decision  is  conchisive. 

In  other  counties  where  there  is  no  county  poor  house,  no 
person  can  be  supported  as  a  county  pauper,  without  the  direc- 
tion of  at  least  one  superintendent.  In  such  case,  the  overseers 
m  the  town  where  such  person  is,  must  immediately  give  notice 
to  one  of  the  superintendents,  who  must  inquire  into  the  cir- 
cumstances ;  if  he  is  satisfied  that  such  pauper  has  not  gained 
a  settlement  in  any  town,  he  must  give  a.  certificate  to  that 
effect,  and  that  he  is  chargeable  to  the  county.  He  must  report 
such  case  to  the  board  of  superintendents  at  their  next  meeting, 
who  may  affirm  or  annul  the  certificate,  on  giving  notice  to  the 
overseers  of  the  town  interested,  and  after  hearing  the  allega- 
tions and  proofs.  If  the  superintendents  refuse  such  certificate, 
the  overseers  may  apply  to  the  board  of  superintendents,  who 
must  summarily  hear  and  determine  the  matter,  and  whose 
decision  is  conclusive.     (Id.) 

When  any  person  applies  for  relief  to  an  overseer  of  the  poor, 
in  any  county  where  there  is  a  county  poor  house,  he  is  to  in- 
quire into  the  condition  of  the  applicant  ;  and  if  he  require 
permanent  aid,  cause  him  to  be  removed  to  the  county  poor 
house,  there  to  be  provided  for.  If  it  be  one  of  the  counties 
where  the  towns  each  support  their  own  poor,  the  overseer  must 
designate,  in  the  order  of  removal,  whether  he  is  chargeable  to 
the  county  or  not ;  otherwise  Ire  will  be  deemed  to  belong  to 
his  town.  The  expense  of  such  removal  is  to  be  paid  by  the 
county  treasurer,  on  the  certificate  of  the  keeper  of  the  poor 
house,  countersigned  by  two  of  the  superintendents,  at  such 
rates  as  they  have  prescribed.  And  the  overseers  are  to  be  paid 
their  necessary  expenses  by  the  county  treasurer,  on  the  order 
of  the  superintendents,  which  is  chargeable  to  the  county,  if 
such  pauper  be  a  county  charge,  and  to  the  town  sending  him, 
if  he  be  not  a  county  charge.  Such  pauper  is  to  be  maintained 
until  the  superintendents  think  he  can  support  himself,  when 
they  may  discharge  him.     (1  R.  S.  791,  sec.  45.) 

If  such  person  require  only  temporary  relief,  or  cannot  well 
be  removed  to  the  county  house,  any  of  the  overseers  have  the 
discretionary  right  to  expend  a  sum  not  exceeding  ten  dollars 
for  the  relief  of  one  poor  person  or  family ;  and  the  overseer 
may  receive  such  sum  from  the  county  treasurer  on  such  order, 
to  be  charged  to  the  county,  if  the  person  be  a  county  charge. 


560  OF  COUNTY  AND  TOWN  OFFICERS. 

or  to  the  town  for  which  the  rehef  was  afforded;  if  he  be  a  town 
charge.     (Id.  792,  sec.  46.) 

If  apphcation  for  rehef  is  made  in  any  of  those  counties 
where  no  county  poor  house,  or  other  place  for  the  reception  of 
the  poor,  is  provided,  the  overseers,  assisted  by  a  Justice,  must 
inquire  into  the  case,  and  make  an  order  in  writing  for  such 
allowance,  weekly  or  otherwise,  as  they  think  required  by  the 
necessities  of  such  poor  person.  If  the  pauper  have  a  legal 
settlement  in  the  town  where  such  application  is  made,  or  in 
any  other  town  of  the  same  county,  the  overseers  must  apply 
the  moneys  so  allowed  to  the  relief  and  support  of  such  pauper ; 
the  moneys  paid  by  them,  or  contracted  to  be  paid,  pursuant  to 
such  order,  must  be  drawn  by  them  from  the  county  treasurer, 
on  producing  the  said  order,  out  of  the  funds  in  his  hands  be- 
longing to  the  town.  If  the  person  have  no  settlement  in  the 
county,  the  overseers  are  to  give  notice,  as  above  mentioned,  to 
the  county  superintendents,  maintaining  him  until  the  superin- 
tendents take  charge  of  him  ;  for  which  the  overseers  are  to  be 
paid  by  the  county  treasurer.     (Id.  sees.  47,  48  and  49.) 

In  the  counties  where  the  respective  towns  are  required  to 
support  their  own  poor,  the  county  treasurers  must  respectively 
open  and  keep  an  account  with  each  town,  in  which  the  town 
must  be  credited  with  all  moneys  received  from  the  same,  or 
from  its  officers,  and  be  charged  with  the  moneys  paid  for  the 
support  of  the  poor  chargeable  to  such  town.     (Id.  sec.  51.) 

In  the  counties  where  no  county  poor  houses  are  established, 
the  overseers  of  the  poor  of  the  respective  towns  must  enter,  in 
books  to  be  provided  at  the  expense  of  their  towns,  an  account 
of  all  matters  transacted  by  them  relatmg  to  their  official  duties  ; 
of  all  moneys  received  by  them,  specifying  from  whom,  and  on 
what  account ;  of  all  moneys  laid  out  and  disbursed  by  them, 
to  whom,  and  by  what  authority,  and  specifying  in  each  case 
whether  to  county  poor  or  town  poor  ;  the  names  of  all  persons 
applying  for  relief,  and  ordered  to  bo  relieved  as  aforesaid  ;  the 
day  and  year  when  they  were  admitted  to  have  relief;  the  weekly 
or  other  sums,  allowed  for  that  purpose,  and  the  cause  of  giving 
such  relief  On  the  Tuesday  next  before  the  annual  town 
meeting,  they  must  lay  such  books  before  the  town  auditors, 
with  a  true  account  of  all  moneys  received  by  them,  and  ex- 
pended for  the  use  of  the  poor,  and  in  what  manner  ;  with  an 
account  of  llic  earnings  of  the  poor  employed  by  them  ;  which 


OF  COUNTY  AND  TOWN  OFFICERS.  561 

account  must  be  verified  by  their  oaths,  and  filed  with  the  town 
clerk  ;  all  of  which  are  to  be  examined,  audited,  and  settled  bv 
the  board  of  town  auditors,  and  the  balance  due  to  or  from  the 
overseers,  stated.  No  credit  can  be  allowed  them  for  moneys 
paid,  unless  they  appear  to  have  been  made  pursuant  to  leo-al 
orders.  Any  person  having  been  an  overseer,  and  neglecting 
so  to  present  such  books  and  accounts,  forfeits  two  hundred  and 
fifty  dollars,  to  be  recovered  by,  and  in  the  name  of,  the  over- 
seers of  the  town.     (I  R.  S.  794,  sec.  55,  56  and  57.) 

In  counties  where  the  respective  towns  are  made  liable  for 
the  support  of  their  poor,  it  is  the  duty  of  the  town  clerk  to 
exhibit  at  the  annual  town  meetings  the  accounts  for  the  sup- 
port of  the  poor  therein,  the  preceding  year,  as  the  same  shall 
have  been  allowed  and  passed  by  the  board  of  town  auditors 
which  accounts  must  be  openly  and  distinctly  read  by  the  clerk 
of  the  meeting  ;  and  the  overseers  must  also  present  an  estimate 
of  the  sum  which  they  deem  necessary  to  supply  any  deficiency 
of  the  preceding  year,  and  to  provide  for  the  support  of  the  poor 
the  ensuing  year.  The  inhabitants  of  the  town  must  there- 
upon, by  a  vote  of  a  majority  of  the  persons  qualified  to  choose 
town  officers,  determine  upon  the  sum  of  money  which  shall  be 
assessed  upon  the  town  the  ensuing  year.  The  sum  so  voted, 
when  raised  and  collected  in  those  counties  where  a  county 
poor  house  or  other  place  is  provided  for  the  poor,  must  be  paid 
to  the  county  treasurer,  and  by  him  placed  to  the  credit  of  the 
town ;  in  all  other  counties,  the  sum  so  voted  by  any  town 
must  be  paid  to  the  overseers  of  the  poor.     (Id.  sees.  58,  59.) 

The  accounts  of  overseers  of  the  poor,  and  of  Justices  of  the 
Peace,  for  any  personal  or  official  services  rendered  by  them  in 
relation  to  the  poor,  must  be  audited  and  settled  by  the  board 
of  supervisors,  and  the  sums  thus  audited  and  allowed,  must 
be  paid  to  the  county  treasurer  ;  and  if  the  services  were  ren- 
dered in  behalf  of  any  town  liable  to  support  its  own  poor,  the 
same  must  be  charged  to  such  town.  No  allowance  for  time  or 
services,  can  be  made  to  any  officer  for  attending  any  board 
Avith  any  accounts,  for  the  purpose  of  having  the  same  audited 
or  paid.     (1  R.  S.  795,  sec.  61.) 

If  any  person  entice  or  remove,  or  cause  to  be  removed,  with- 
out legal  authority,  any  pauper  or  indigent  person,  from  one 
town,  county,  or  city,  into  another,  with  intent  to  make  him 
chargeable  therein,  he  forfeits  fifty  dollars,  to  be  recovered  by, 

36 


562  OF  COUNTY  A^JD  TOWN  OFFICERS. 

and  in  the  name  of,  the  overseers  of  the  town,  or  the  superin- 
tendents of  the  coinity,  into  which  such  poor  person  is  brought ; 
and,  on  conviction  thereof,  he  may  he  imprisoned  not  more  than 
six  months,  or  fined  not  more  than  one  hundred  dollars,  or  both, 
in  the  discretion  of  the  court.  If  any  person  so  remove  a  pau- 
per from  without  the  state,  to  a  county  or  town  within  it,  he  for- 
feits fifty  dollars,  to  be  recovered  by,  and  in  the  name  of,  the 
superintendents  of  the  county  to  which  such  pauper  is  brought 
before  any  Justice  of  the  Peace  therein  ;  and  he  is  obliged  to 
support  such  pauper  at  his  own  expense,  or  convey  him  out  of 
the  state  ;  and  the  Justice  may  require  him  to  give  satisfactory 
security  that  he  will  do  so  within  a  reasonable  time,  or  indem-. 
nify  the  town  or  county  for  the  support  of  such  pauper  ;  and,  if 
he  fail  to  give  such  security,  the  Justice  must  commit  him  to 
the  common  jail  of  the  county,  for  not  more  than  three  months. 
(Sees.  63  and  64.) 

When  a  pauper  has  been  improperly  brought  or  eniiced  into 
any  town  or  county,  he  is  to  be  supported  by  the  county  super- 
intendents thereof  ;  but  they  may  give  notice  to  the  overseers  of 
the  town   from  which  he  came,  if  liable  for  his  support,  or,  if 
there  be  no  town  so  liable,  then  to  any  of  the  superintendents  of 
the  county  from  which  such  pauper  was  brought,  requiring  them 
to  take  charge  of  liim.     Such  superintendents  or  overseers,  with- 
in thirty  days  after  service  of  such  notice,  must  take  the  pauper 
and  pay  all  the  expenses  of  the  notice  and  of  his  support,  or  else 
notify  some  of  the  superintendents  from  M^iom  the  notice  was 
received,  that  they  deny  such  improper  removal,  or  that   their 
town  is  liable  for  the  support  of  such   pauper  ;  otherwise,  their 
towns  or  counties  are  liable  for  all  expenses,  and  to  support  such 
pauper,  and  are  precluded  from  contesting  the  same.     (I  R.  S. 
796,  sees.  65  and  66.) 

Upon  service  of  any  such  notice  of  denial,  the  county  super- 
intendents upon  whom  the  same  is  served,  must,  within  three 
months,  commence  a  suit  against  the  overseers  of  the  poor  of 
the  town  or  coimty  superintendents  of  the  poor  of  the  county,  to 
whom  the  first  notice  was  directed,  or  against  their  successors 
in  ofiico,  for  the  expenses  inciu'red  in  the  support  of  such  pau- 
per, and  must  prosecute  the  same  to  eO'cct  ;  if  they  neglect  to 
do  so,  they,  tiicir  successors,  and  their  county,  will  be  forever 
nrncludfd  frnm  all  claim  against  the  county  or  town,  lo  whose 
officers  such  notice  was  directed,  or  any  of  tiicir  officers,  for  any 


OF  COUNTY  AND  TOWN  OFFICERS.  563 

expenses  that  may  have  been,  or  may  be,  incurred,  for  the  sup- 
port of  such  pauper.     (Sec.  67.) 

All  the  penalties  above  named,  when  recovered,  arc  to  be  paid 
to  the  county  treasurer,  for  the  benefit  of  the  poor,  and  arc  to  be 
credited  by  him  to  the  town  by  whose  ofiicers  they  are  collected, 
if  such  town  is  liable  for  the  support  of  its  own  poor,  or  to  the 
county,  when  collected  by  the  county  superintendents ;  if  not 
paid  over  by  the  persons  collecting  them,  when  demanded  by 
the  county  treasurer,  he  may  sue  for  the  same  in  his  name  of 
office.     (Sec.  71.) 

Whenever  it  is  made  to  appear  to  the  satisfaction  of  any  over- 
seer of  the  poor,  either  upon  complaint,  or  otherwise,  that  a  pe- 
nalty has  been  incurred  by  the  violation  of  any  provisions 
contained  in  the  statutes  of  this  state,  which  such  overseer  is 
directed  by  law  to  collect,  it  is  his  duty  immediately  to  commence 
a  suit  for  such  penalty,  and  to  prosecute  the  same  diligently  to 
eifect.     (Sec.  72.) 

In  auditing  the  accounts  of  the  overseers  of  the  poor,  by  the 
board  of  town  auditors,  allowance  must  be  made  to  them  for  all 
costs  to  which  they  may  have  been  subjected,  or  which  may 
have  been  recovered  against  them,  in  any  suit  brought  by  them 
pursuant  to  law;  and  they  must  also  be  allowed  the  same  daily 
pay  for  attending  to  any  such  suit,  as  is  allowed  them  for  the 
performance  of  their  official  duties.  Such  allowances  may  be 
credited  to  them  in  their  accounts  for  moneys  collected  for  pe- 
nalties, and  may  be  deducted  from  such  moneys  ;  and  the  ba- 
lance of  such  penalties  must  be  paid  to  their  successors  in  of- 
fice, or  to  the  couuty  treasurer,  as  directed  by  law,  in  respect  to 
such  penalties.  If  there  is  not  sufficient  money  in  their  hands 
to  satisfy  such  allowances,  the  same  must  be  paid  as  other  town 
charges. 

In  those  counties  where  there  is  no  county  poor  house,  or 
other  place  provided  for  the  reception  of  the  poor,  the  moneys 
raised  and  collected  in  the  several  towns  for  the  support  of  the 
poor,  must  be  received  and  disbursed  by  the  overseers  of  the 
poor  in  such  towns  respectively. 

20.   Town  Superintendents  of  Common  Schools. 

The  office  of  trustees  of  gospel  and  school  lots,  in  the  several 
towns  of  this  state,  is  abolished,  and  its  powers  and  duties  exer- 


554  OF  COUNTY  AND  TOWN  OFFICERS. 

cised  by  the  town  superintendents  of  common  schools.  (Laws, 
1846,  ch.  186.)  The  latter  office  was  created  by  a  law  of 
1843,  abolishing  the  offices  of  commissioners  and  inspectors  of 
common  schools,  and  substituting  the  town  superintendent. 

A  town  superintendent  of  common  schools  is  elected  in  each 
of  the  towns  of  the  state,  at  the  same  time,  and  in  the  same 
manner,  as  other  town  officers.     (Laws,  1847,  ch.  480,  sec.  1.) 

It  is  his  duty,  on  or  before  the  first  Monday  of  November  suc- 
ceeding his  election,  to  execute  to  the  supervisor  of  his  town, 
and  file,  with  the  town  clerk,  a  bond,  with  one  or  more  sufficient 
sureties  to  be  approved  by  the  supervisor  by  endorsement,  over 
his  signature  on  the  bond,  with  a  penalty  in  double  the  amount 
of  all  the  school  moneys,  received  by  his  town,  from  all  sources, 
during  the  preceding  year,  and  conditioned  for  the  faithful  appli- 
cation and  legal  disbursement  of  all  the  school  money  coming 
into  his  hands  during  his  term  of  office,  and  for  the  faithful 
discharge  of  all  the  duties  of  his  office.     (Id.  sec.  3.) 

If  the  bond  is  not  executed,  filed  and  approved,  within  the 
prescribed  time,  the  office  of  the  town  superintendent  will  be 
deemed  vacant.     (Id.) 

Such,  or  any  vacancy,  thai  may  occur  in  the  office,  must  be 
filled  by  any  three  Justices  of  the  Peace  of  the  same  town,  by 
a  warrant,  under  their  hands  and  seals.  The  persons  so  ap- 
pointed will  hold  their  offices  until  others  are  elected  or  ap- 
pointed in  their  places,  and  they  will  have  the  same  powers,  and 
be  subject  to  the  same  duties  and  penalties,  as  if  they  had  been 
duly  chosen  by  the  electors.     (Id.) 

The  Justices  making  the  appointment,  must  forthwith  cause 
the  warrant  to  be  filed  in  the  office  of  the  town  clerk  of  the 
town,  and  give  immediate  notice  to  the  person  appointed. 
(Sec.  4.) 

'riie  town  superintendent,  upon  giving  the  required  security, 
enters  upon  the  duties  of  his  office  on  the  first  Monday  of  No- 
vember succeeding  his  election.  He  holds  his  office  two  years, 
and  until  a  successor,  who  shall  have  been  duly  elected,  shall 
have  taken  the  oath  of  office  and  filed  an  official  bond,  pursuant 
to  the  provisions  of  the  statute. 

No  town  superinlcinknt  can  hold  the  office  of  trustee  of  a 
school  district,  nor  the  office  of  supervisor,  or  town  clerk. 
(Sec.  0.) 


OF  COUNTY  AND  TOWN  OFFICERS.  565 

It  is  tlie  duty  of  the  town  superintendent  of  commnn  schools 
in  each  town — 

1.  To  divide  the  town  into  a  convenient  number  of  school  dis- 
tricts, and  to  regulate  and  alter  such  districts  as  hereinafter  pro- 
vided. 

2.  To  set  off  by  itself  any  neighborhood  in  the  town  adjoin- 
ing to  any  state,  where  it  has  been  usual,  or  shall  be  found  con- 
venient for  such  neighborhood  to  send  their  children  to  a  school 
in  such  adjoining  state. 

3.  To  describe  and  number  the  school  districts,  and  to  deli- 
ver the  description  and  numbers  thereof,  in  writing,  to  the 
town  clerk,  immediately  after  the  formation  or  alteration  thereof. 

4.  To  deliver  to  such  town  clerk,  a  description  of  each  neigh- 
borhood, adjoining  to  any  other  state,  set  off  by  itself. 

5.  To  apply  for,  and  receive,  from  the  county  treasurer,  all 
moneys  apportioned  for  the  use  of  common  schools  in  their  town, 
and  from  the  collector  of  the  town,  all  moneys  raised  therein  for 
the  same  purpose,  as  soon  as  such  moneys  become  payable,  or 
are  collected. 

6.  To  apportion  the  school  moneys  received  on  the  first  Tues- 
day of  April,  in  each  year,  among  the  several  school  districts 
and  neighborhoods  separately  set  off,  within  the  town,  in  pro- 
portion to  the  number  of  children  residing  in  each,  over  the  age 
of  five,  and  under  that  of  sixteen  years,  as  the  same  shall 
have  appeared  from  the  last  annual  reports  of  their  respective 
trustees. 

7.  If  the  town  superintendent  shall  have  received  the  school 
moneys  of  the  town,  and  all  the  reports  from  the  several  school 
districts  therein,  before  the  first  Tuesday  of  April,  he  is  required 
to  apportion  such  moneys  as  above  directed,  within  ten  days  af- 
ter receiving  all  of  the  reports  and  the  moneys, 

8.  To  sue  for  and  collect,  by  his  name  of  office,  all  penalties 
and  forfeitures,  in  respect  to  which  the  statute  makes  no  other 
provision,  which  may  be  incurred  by  any  officer  or  inhabi- 
tant of  their  town,  and,  after  deducting  their  costs  and  ex- 
penses, to  add  the  sums  recovered  to  the  school  moneys  re- 
ceived by  them,  to  be  apportioned  and  paid,  in  the  same 
manner. 

In  making  the  apportionment  of  public  money  among  the  se- 
veral school  districts,  no  share  can  be  allotted  to  any  district, 
part  of  a  district,  or  separate  neighborhood,  from  which  no  suf- 


566  OF  COUNTY  AND  TOWN  OFFICERS. 

ficient  annual  report  shall  have  been  received  for  the  year  end- 
ing on  the  last  day  of  December  immediately  preceding  the  ap- 
portionment.    (Laws,  1847,  ch.  480.  sec.  9.) 

In  making  the  apportionment  of  public  money,  it  is  the  duty 
of  the  town  superintendent  to  designate  the  respective  propor- 
tions of  teachers'  and  library  money  belonging  to  each  district, 
and  to  paj?'  over  as  much  as  is  designated  teachers'  money,  on 
the  written  order  of  a  mojority  of  the  trustees  of  each  district, 
to  the  teachers  entitled  to  receive  the  same.     (Id.  sec.  10.) 

It  is  provided  that  no  moneys  shall  be  apportioned  and  paid  to 
any  district,  or  part  of  a  district,  unless  it  appears,  by  the  report, 
that  a  school  had  been  kept  therein  for  at  least  four  months  dur- 
ing the  year  ending  at  the  date  of  the  report,  by  a  qualified 
teacher;  that  no  other  than  a  duly  qualified  teacher  had,  at  any 
time  during  the  year,  for  more  than  one  month  been  employed  to 
teach  the  school  in  said  district ;  and  that  all  moneys  received 
during  that  year  have  been  applied  to  the  payment  of  the  com- 
pensation of  such  teacher;  and  no  portion  of  the  library  money 
can  be  apportioned  or  paid  to  any  district,  or  part  of  a  district, 
unless  it  appears,  from  the  last  annual  report  of  the  trustees,  that 
the  library  money  received  at  the  last  preceding  apjiortionmenl 
was  duly  expended  according-  to  law,  on  or  before  the  first  day 
of  October,  subsequent  to  such  apportionment.     (Sec.  11.) 

No  teacher  will  be  deemed  a  qualified  teacher  within  the 
meaning  of  the  foregoing,  who  shall  not  have  received,  and 
shall  not  then  hold,  a  certificate  of  qualification,  dated  within 
one  3^ear,  from  the  town  superintendent  of  common  schools,  for 
the  town  in  which  such  teacher  is  employed.     (Sec.  12.) 

It  is  provided  that  no  part  of  such  moneys  shall  be  appor- 
tioned or  paid  to  any  separate  neighborhood  adjoining  another 
state,  unless  it  appears  from  the  report  of  (he  trustees  that  all 
moneys  received  by  them  during  the  year  ending  at  the  date  of 
sucli  report,  have  been  faithfully  applied  in  paying  for  the  in- 
struction of  children  residing  in  tiio  neighborhood.     (Sec.  13.) 

Whenever  an  apportionment  of  the  j)ublic  money  is  not  made 
to  any  school  district,  in  consequence  of  any  accidental  omission 
10  make  any  report  required  by  law,  or  to  comply  with  any  other 
provision  of  law,  or  any  regulation,  the  slate  superintendent  may 
direct  an  apportionment  to  be  made  to  such  district,  according  to 
the  C(]uilable  circumstances  of  the  case,  to  be  paid  out  of  the 
public  money  on  hand  ;  or  if  the  same  has  been  distributed,  out 


OF  COUNTY  AND  TOWN  OFFICERS.  567 

of  the  public  money  to  be  received  in  a  succeeding  year.     (Sec. 
14.) 

It  is  provided  that  all  moneys  apportioned  by  the  town  super- 
intendent to  the  trustees  of  a  district,  part  of  a  district,  or  sepa- 
rate neighborhood,  which  shall  have  remained  in  the  hands  of 
the  town  superintendent  for  one  year  after  such  apportionment, 
by  reason  of  the  trustees  neglecting  or  refusing  to  receive  the 
same,  shall  be  added  to  the  moneys  next  thereafter  to  be  appor- 
tioned by  the  town  superintendent,  and  shall  be  apportioned  and 
paid  therewith  in  the  same  manner.  (Lnws,  1817,  ch.  480,  sec. 
17.) 

In  case  any  school  moneys  received  by  the  town  superinten- 
dent cannot  be  apportioned  by  him  for  the  term  of  two  years 
after  the  same  are  received,  by  reason  of  the  non-compliance  of 
all  the  school  districts  in  his  town  with  the  provisions  of  the  sta- 
tute, such  moneys  must  be  returned  by  him  to  the  county  trea- 
surerer.  to  be  by  him  apportioned  and  distributed  together,  and 
in  the  same  manner,  with  the  moneys  next  thereafter  to  be  re- 
ceived by  him,  for  the  use  of  common  schools.     (Sec.  18.) 

It  is  the  duty  of  the  town  superintendent  in  each  town,  be- 
tween the  first  day  of  July  and  the  first  day  of  August  in  each 
year,  to  make  and  transmit  to  the  county  clerk  a  report  in  wri- 
ting, bearing  date  on  the  first  day  of  July,  in  the  year  of  its  trans- 
mission, and  stating, 

1.  The  whole  number  of  school  districts,  and  neighborhor- 
hoods  separately  set  off  within  the  town. 

2.  The  districts,  parts  of  districts,  and  neighborhoods  from 
which  reports  shall  have  been  made  to  him,  or  to  his  immediate 
predecessor  in  office,  within  the  time  limited  for  that  purpose. 

3.  The  length  of  lime  a  school  shall  have  been  kept  in  each 
of  such  districts,  or  parts  of  districts  distinguishing  what  por- 
tion of  that  time  the  school  shall  have  been  kept  by  qualified 
teachers. 

4.  The  amount  of  public  moneys  received  in  each  of  such 
districts,  parts  of  districts,  and  neighborhoods. 

5.  The  number  of  children  taught  in  each,  and  the  number 
of  children  over  the  age  of  five,  and  under  sixteen  years,  resi- 
ding in  each. 

6.  The  whole  amount  of  moneys  received  by  him,  or  his  pre- 
decessor in  office,  during  the  year  ending  at  the  date  of  such  re- 
port, and  since  the  dale  of  the  last  preceding  report ;  distinguish- 


5(38  OF  COUNTY  AND  TOWN  OFFICERS. 

ing  the  amount  received  from  the  county  treasurer,  from  the 
town  collector,  and  from  any  otiier  and  wiiat  source. 

7.  The  manner  in  which  such  moneys  have  been  expended, 
and  whether  any  and  what  part  remains  unexpended,  and  for 
what  cause, 

8.  The  amount  of  money  paid  for  teachers'  wages,  in  addi- 
tion to  the  public  money  paid  therefor ;  the  amount  of  taxes  levied 
for  purchasing  school  house  sites,  for  building,  hiring,  purcha- 
sing, repairing  and  insuring  school  houses ;  for  fuel,  and  sup- 
plying deficiencies  in  rate  bills  ;  for  district  libraries,  or  for  any 
other  purposes  allowed  by  law,  in  the  districts,  parts  of  districts 
and  neighborhoods  from  which  reports  shall  have  been  received 
by  him,  or  his  immediate  predecessor  in  office  ;  with  such  other 
information  as  the  state  superintendent  may  from  time  lo  time 
require,  in  relation  to  the  districts  and  schools  within  his  town. 
(Laws,  1847,  ch.  480,  sec.  19.) 

Town  superintendents  who  neglect  to  furnish  the  foregoing 
information,  will  severally  forfeit  to  the  town,  for  the  use  of  the 
common  schools  therein,  the  sum  of  ten  dollars,  to  be  sued  for 
by  the  supervisor  of  the  town.     (Id.  sec.  20.) 

In  case  the  town  superintendent  in  any  town  does  not,  on  or 
before  the  first  day  of  August  in  any  year,  make  such  report  to 
the  clerk  of  the  county,  it  is  his  duty  to  give  immediate  notice 
of  such  neglect  to  the  clerk  of  the  town.     (Sec.  21.) 

The  town  superintendent  neglecting  to  make  such  report 
within  the  limited  period,  will  forfeit  to  the  town,  for  the  use  of 
the  common  schools  therein,  the  sum  of  ten  dollars  ;  and  the 
share  of  school  moneys  apportioned  to  the  town  for  the  ensuing 
year,  may,  in  the  discretion  of  the  state  su])erintendent,  be  with- 
held, and  be  distributed  among  the  other  towns,  in  the  same 
county,  from  which  the  necessary  reports  shall  have  been  re- 
ceived.    (Sec.  22.) 

When  the  share  of  school  moneys  apportioned  to  a  town  is 
lost  to  the  town  by  the  neglect  of  its  town  superintendent,  the 
town  superintendent  guilty  of  such  neglect,  and  his  sureties,  will 
be  liable  for  the  full  amount  so  lost,  with  interest.     (Sec.  23.) 

It  is  the  duty  of  the  supervisor  of  the  town,  upon  notice  of 
sucli  loss  from  the  state  superintendent  or  county  treasurer,  to 
prosecute,  without  delay,  in  the  name  of  the  town  for  sucli  for- 
feiture, 'i'he  moneys  recovered  must  be  distributed  and  paid 
by  the  supervisor  to  the  several   districts,  parts  of  districts,  or 


OF  COUNTY  AND  TOWN  OFFICERS.  569 

separate  neighboilioods  of  the  town,  in  the  same  manner  as  it 
would  have  been  the  duty  of  the  town  superintendent  to  have 
distributed  and  paid  them,  if  received  from  the  county  trea- 
surer.    (Sec.  24.) 

The  town  superintendent  in  each  town  is  required  to  keep  a 
just  and  true  account  of  all  school  moneys  received  and  expend- 
ed by  him  during  each  year  for  which  he  shall  have  been  cho- 
sen, and  to  lay  the  same  before  the  board  of  auditors  of  town 
accounts  at  the  annual  meeting  of  the  board  in  each  year. 
(Sec.  25.) 

The  town  superintendent  in  each  town  is  required  to  Iceep  a 
just  and  true  account  of  all  school  moneys  received  and  ex- 
pended by  him  during  each  year  for  which  he  shall  have  been 
chosen,  and  to  lay  the  same  before  the  board  of  auditors  of  town 
accounts,  at  the  annnal  meeting  of  the  board  in  each  year.  (Sec. 
25.) 

He  is  also  required,  within  fifteen  days  after  the  termination 
of  his  office,  to  render  to  his  successor  in  office  a  just  and  true 
account  in  writing  of  all  school  moneys  received  by  him  before 
the  time  of  rendering  such  account,  and  of  the  manner  in  which 
he  shall  have  appropriated  and  expended  the  same.  The  ac- 
count so  rendered  must  be  delivered  by  his  successor  in  office  to 
the  town  clerk,  to  be  filed  and  recorded  in  his  office.     (Sec.  26.) 

Upon  rendering  his  account,  if  any  balance  is  found  remain- 
ing in  the  hands  of  the  town  superintendent,  it  must  be  imme- 
diately paid  by  him  to  his  successor  in  oOice.     (Sec.  27.) 

If  such  balance,  or  any  part  of  it,  has  been  appropriated  by 
the  town  superintendent  to  atiy  particular  school  district,  part  of 
a  district,  or  separate  neighborhood,  and  remains  in  his  hands 
for  the  use  thereof,  a  statement  of  such  appropriation  must  be 
made  in  the  account  rendered,  and  the  balance  paid  to  such  suc- 
cessor in  office  must  be  paid  over  by  him  according  to  such  ap- 
propriation.    (Sec.  28.) 

Such  successor  in  office  may  bring  a  suit  in  his  name  of  office 
for  the  recovery,  with  interest,  of  any  unpaid  balance  of  school 
moneys  that  shall  appear  to  have  been  in  the  hands  of  any  pre- 
vious town  superintendent,  on  leaving  his  office,  either  by  the 
accounts  rendered  by  such  town  superintendent,  or  by  other  suf- 
ficient proof;  and  in  case  of  the  death  of  such  town  superin- 
tendent, such  suit  may  be  brought  against  his  representatives. 
(Sec.  29.) 


570  OF  COUNTY  AND  TOWN  OFFICERS. 

The  town  superintendent  in  each  town  has  the  powers  and 
privileges  of  a  corporation,  so  far  as  to  enable  him  to  take  and 
hold  any  property  transferred  to  him  for  the  use  of  common 
schools  in  such  town.     (Sec.  30.) 

The  town  superintendent  is  entitled  to  receive  one  dollar  and 
twenty-five  cents  per  day  for  every  day  actually  and  necessarily 
devoted  by  him,  in  his  official  capacity,  to  the  service  of  the  town 
for  which  he  may  be  chosen — the  same  to  be  paid  in  like  man- 
ner as  other  town  officers  are  paid.     (Sec.  31.) 

It  is  the  duty  of  the  town  clerk  of  each  town  to  receive  and 
keep  all  reports  made  to  the  town  superintendent  from  the  trus- 
tees of  school  districts,  and  all  books  and  papers  belonging  to 
the  town  superintendent  when  required,  and  to  file  them  in  his 
office ;  to  receive  all  his  estimates  and  apportionments  of  school 
money,  and  to  record  the  same  in  a  book  to  be  kept  for  that' 
purpose  ;  to  notify  the  town  superintendent,  upon  receiving 
notice  from  the  county  clerk,  that  he  has  not  made  his  annual 
report,  for  the  purpose  of  making  such  report.  (Laws  of  1847, 
ch.  480,  sec.  32.) 

The  town  superintendent  in  each  town  is  the  inspector  of 
common  schools.     (Id.  sec.  33.) 

It  is  his  duty  to  examine  all  persons  offering  themselves  as 
candidates  for  teaching  common  schools  in  the  town.  (Id. 
sec.  34.) 

In  making  the  examination,  it  is  his  duty  to  ascertain  the 
qualifications  of  the  candidate  in  respect  to  moral  character, 
learning,  and  ability.     (Id.  sec.  35.) 

If  he  is  satisfied  in  respect  to  the  qualifications  of  the  candi- 
date, he  must  deliver  to  the  person  so  examined,  a  certificate 
signed  by  him,  in  the  form  prescribed  by  the  state  superinten- 
dent.    (Id.  sec.  36.) 

The  town  superintendent  may  annul  any  such  certificate 
given  by  him,  or  his  predecessors  in  office,  when  he  thinks 
proper.  He  must,  however,  give  at  least  ten  days  previous 
notice  in  writing,  to  the  teacher  holding  the  certificate,  and  to 
the  trustees  of  the  district  in  which  he  is  employed,  of  his  inten- 
tion to  annul  the  same.     (Id.  sec.  37.) 

The  town  superintendent,  whenever  he  deems  it  necessary, 
may  ro(piirc  a  re-examination  of  all  or  any  of  the  teachers  in 
his  town,  for  the  purpose  of  ascertaining  their  qualifications  to 
continue  as  teachers.     (Id.  sec.  38.) 


OF  COUNTY  AND  TOWN  OFFICERS.  571 

The  annulling  of  a  certificate  will  not  disqualify  the  teacher 
to  whom  it  was  given,  until  a  note  in  writing  containing  the 
name  of  the  teacher,  and  the  time  when  his  certificate  was 
annulled,  is  made  hy  the  town  superintendents,  and  filed  in  the 
office  of  the  town  clerk.     (Id.  sec.  39.) 

When  any  school  district  is  composed  of  parts  of  two  or  more 
towns,  the  town  superintendent  of  the  town  in  which  the 
school  house  of  the  district  is  situated,  must  examine  into  and 
certify  the  qualifications  of  any  teacher  offering  to  teach  in  the 
district,  in  the  same  manner  as  in  the  foregoing  ;  and  he  may 
also,  in  the  same  manner,  annul  the  certificate  of  such  teacher  ; 
and  it  is  provided  that  no  school  house  shall  he  erected  so  as  to 
stand  on  {he  division  lines  of  any  two  or  more  towns.  (Id. 
sec,  40.) 

It  is  the  duty  of  the  town  superintendent  to  visit  all  the  com- 
mon schools  in  his  town,  which  are  organized  according  to  law, 
at  least  twice  a  year,  and  oftener,  if  he  deems  it  necessary. 
(Id.  sec.  41.) 

At  such  visitation,  the  town  superintendent  must  examine 
into  the  state  and  condition  of  the  schools,  both  as  respects  the 
progress  of  the  scholars  in  learning,  and  the  good  order  of  the 
schools  ;  and  he  may  give  his  advice  and  direction  to  the  trus- 
tees and  teachers  as  to  the  government  of,  and  the  course  of 
studies  to  be  pursued  in,  the  schools.     (Id.  sec.  42.) 

In  the  erection  or  alteration  of  a  school  district,  the  trustees  of 
any  district  to  be  afl'ected  thereby,  may  apply  to  the  supervisor 
and  town  clerk  to  be  associated  with  the  town  superintendent  ; 
and  their  action  will  be  final,  unless  duly  appealed  from.  (Laws 
of  1847,  ch.  480,  sec.  43.) 

Whenever  it  becomes  necessary,  or  convenient,  to  form  a  dis- 
trict out  of  two  or  more  adjoining  towns,  the  town  superintend- 
ent of  each  of  such  adjoining  towns,  or  the  major  part  of  them, 
may  form,  regulate,  and  alter  such  district.     (Id.  sec.  44.) 

No  alteration  of  any  school  district,  made  without  the  consent 
of  its  trustees,  will  take  eflfect  until  three  months  after  notice  in 
writing,  given  by  the  town  superintendent  to  some  one  or  more 
of  the  trustees  ;  nor  can  any  alteration  or  regulation  of  an  or- 
ganized school  district  be  made,  to  take  effect  between  the  first 
day  of  December  in  any  one  year,  and  the  first  day  of  May 
following.     (Id.  sec.  4-5.) 

If  the  town  superintendent  in  any  town  requires,  by  notice 


572  OF  COUNTY  AND  TOWN  OFFICERS. 

in  writing,  the  attendance  of  the  town  superintendents  of  any- 
other  town  or  towns,  at  a  joint  meeting  for  the  purpose  of  aUer- 
ing  a  school  district,  formed  from  their  respective  towns,  and  a 
major  part  of  the  town  superintendents  notified,  refuse  or  neglect 
to  attend,  the  town  superintendents  attending,  by  a  majority  of 
votes,  may  call  a  special  meeting  of  the  district  for  the  purpose 
of  deciding  on  the  proposed  alteration  ;  and  the  decision  of  the 
meeting  will  be  as  valid  as  if  made  by  the  town  superintendents 
of  all  the  towns  interested,  but  will  extend  no  further,  than  to 
dissolve  the  district  from  such  towns,     (Id.  sec.  46.) 

When  there  are  any  moneys  in  the  hands  of  the  officers  of  a 
district  tliat  is  or  may  be  annulled,  or  belonging  to  the  district, 
the  town  superintendent  of  the  town  may  demand,  sue  for,  and 
recover  the  same,  in  his  name  of  office,  and  must  apportion  the 
same  equitably  between  the  districts  to  which  the  several  por- 
tions of  the  annulled  district  may  have  been  annexed,  to  be 
held  and  enjoyed  as  district  property.     (Id.  sec.  52.) 

[For  further  duties  of  town  superintendents^  vide  post,  chap. 
22.) 

21.  Pound- Masters. 

There  are  elected  at  the  annual  town  meetings  in  each  town, 
as  many  pound-masters  as  the  electors  therein  may  determine. 
(1  R.  S.  387,  sec.  4.) 

The  pound-masters  of  the  several  cities  and  towns  of  the 
state,  are  required  to  receive  and  keep  the  beasts  delivered  to 
them,  in  the  public  pound,  and  unless  the  same  are  replevied, 
or  discharged  according  to  law,  within  six  days,  the  pound- 
master  must  sell  the  beasts,  or  so  many  of  them  as  may  be 
necessary,  at  public  vendue,  giving  forty-eight  hour's  notice  of 
the  sale,  by  advertisement,  to  be  fixed  up  at  such  pound,  and 
at  the  nearest  public  place.     (2  R.  S.  G08,  sec.  5.) 

From  the  proceeds  of  the  sale,  the  pound-master  may  retain 
sufficient  to  pay  the  amount  of  his  fees,  and  his  charges  for 
keeping  the  beasts,  and  the  charges  of  tlie  sale  ;  and  he  must 
pay  to  the  person  in)j)ounding  the  beasts,  the  damages  so  cer- 
tified, with  the  fees  of  the  fence  viewers;  and  if  there  is  any 
surplus,  the  same  nuist  be  paid  to  tiie  owner  of  the  beasts.  If 
no  owner  appear  within  one  year  after  the  sale,  and  claim  such 
surplus,  the  same  nuist  be  paid  to  the  overseers  of  the  poor  of 
the  town  or  city,  for  the  use  of  the  poor.     (Id.  sec.  6.) 


OF  COUNTY  AND  TOWN  OFFICERS.  573 

22.   Town  Auditors. 

The  supervisor,  town  clerk,  and  justices  of  the  peace,  or  any 
two  of  the  justices  of  the  several  towns  in  the  state,  constitute 
a  board  of  town  auditors,  for  the  purpose  of  auditing  and  allow- 
ing the  accounts  of  all  charges  and  claims  payable  by  their 
respective  towns.  (1  R.  S.  404,  sec.  47.)  The  board  is  required 
to  meet  for  the  purpose  of  auditing  and  allowing  such  accounts 
annually,  in  each  town,  at  the  place  of  holding  the  last  town 
meeting,  on  the  last  Thursday  preceding  the  annual  meeting  of 
the  board  of  supervisors  of  the  county.  (Id.  sec.  48.)  It  is  the 
duty  of  the  board  to  make  annually  brief  abstracts  of  the  names 
of  all  persons  who  have  presented  to  the  said  board  accounts  to 
be  audited,  tbe  amounts  claimed  by  each  of  said  persons,  and 
the  amounts  finally  audited  by  them  respectively,  and  to  deliver 
said  abstracts  to  the  clerk  of  the  board  of  supervisors.  (Laws 
of  1847,  ch.  455.) 

The  board  must  make  a  certificate  to  be  signed  by  a  majority 
of  the  board,  specifying  the  name  of  the  person  in  whose  name 
the  account  is  drawn,  the  nature  of  the  demand,  and  the  amount 
allowed  ;  and  cause  a  duplicate  of  said  certificate  to  be  made, 
one  of  which  must  be  delivered  to  the  town  clerk  of  the  town, 
to  be  kept  on  file  by  him  for  the  inspection  of  any  of  the  inhabi- 
tants of  the  town,  and  the  other  must  be  delivered  to  the  snjoer- 
visor  of  the  town,  to  be  laid  by  him  before  the  board  of  supervi- 
sors of  his  county  at  their  annual  meeting.  (1  R.  S.  405,  sec. 
49.) 

No  account  can  be  audited  by  any  board  of  town  auditors  for 
any  services  or  disbursements,  unless  such  account  is  made  out 
in  items,  and  accompanied  with  an  affidavit  attached  to,  and  to 
be  filed  with  such  account,  made  by  the  person  presenting  or 
claiming  the  same,  that  the  items  of  such  account  are  correct, 
and  that  the  disbursements  and  services  charged  therein,  have 
been  in  fact  made  or  rendered,  or  necessary  to  be  made  or  ren- 
dered, at  that  session  of  the  board  ;  and  stating  that  no  part 
thereof  has  been  paid  or  satisfied.     (Laws  of  1847,  ch.  490.) 

23.   Commissioners  of  Excise. 

The  commissioners  of  excise  consist  of  the  supervisor  and  the 
Justices  of  the  Peace  in  each  town.     The  supervisor  and  any 


574  OF  COUNTY  AND  TOWN  OFFICERS. 

two  of  the  Justices,  are  competent  to  act  as  a  board  ;  and  if  the 
office  of  supervisor  be  vacant,  any  three  of  the  Justices  are  com- 
petent to  act.  If  there  are  not  two  Justices  in  the  town,  any 
two  Justices  of  a  neighboring  town  may  be  associated  by  the 
supervisor  with  him,  and  the  three  will  constitute  a  board.  (1 
R.  S.  852,  sec.  1.)  The  board  is  required  to  meet  on  the  first 
Monday  in  May  of  each  year,  and  on  such  other  days  as  the 
supervisor  may  appoint,  and  at  such  places  as  he  may  desig- 
nate ;  or,  if  his  office  is  vacant,  at  such  places  as  the  Justices 
may  appoint.     (Id.  sec.  2.) 

The  board  must  keep  a  book  of  minutes  of  all  their  proceed- 
ings, in  which  must  be  entered  every  resolution  passed  by  them, 
granting  a  license  to  any  person  with  the  sum  required  to  be 
paid  by  such  person  ;  which  minutes  must  be  verilEied  by  their 
signatures,  and  be  filed  with  the  town  clerk  within  five  days. 
(Id.  sec.  3.) 

The  board  has  power  to  grant  licenses  to  keepers  of  inns  and 
taverns,  being  residents  of  their  town,  to  sell  strong  and  spiri- 
tuous liquors  and  wines,  to  be  drank  in  their  houses  respectively, 
and  to  grocers,  being  such  residents,  a  license  to  sell  such  li- 
quors and  wines  in  quantities  less  than  five  gallons,  but  not  to 
be  drank  in  their  shops,  houses,  out  houses,  yards,  or  gardens  ; 
and  to  determine  the  sum  to  be  paid  for  a  license,  by  each  per- 
son applying,  which  sum  must  not  be  less  than  five  dollars. 
(Sec.  4.)  The  licenses  must  be  signed  by  the  commissioners 
granting  the  same  ;  they  must  not  be  issued  until  the  duty  fixed 
by  the  board  has  been  paid  ;  and  when  issued,  they  must  be  in 
force,  unless  revoked,  until  the  day  after  the  first  Monday  in 
May,  in  the  succeeding  year.     (Sec.  5.) 

No  fee  or  reward  can  be  taken  by  any  board  of  excise,  or  by 
any  member  thereof  for  any  license  to  keep  a  tavern,  or  to  sell 
strong  or  spirituous  liquors,  or  for  any  service  required  of  such 
board  ;  nor  can  any  compensation  be  retained  by  any  such 
board,  or  by  any  member  thereof,  out  of  the  excise  money. 
(Sec.  G.) 

The  commissioners  of  excise  are  not  authorized  to  grant  a  li- 
cense to  any  person  to  sell  strong  and  spirituous  liquors  and 
wines  to  be  drank  in  the  house  of  the  seller,  in)l(^ss  such  person 
proposes  to  keep  an  inn  or  tavern,  nor  unless  the  commissioners 
are  satisfied  that  the  applicant  is  of  good  moral  character,  that 
he  is  of  suflicient  abihiy  to  keep  a  tavern,  and  has  the  necessary 


OF  COUNTY  AND  TOWN  OFFICERS.  575 

accommodations  to  eiUortnin  travelers,  and  that  a  tavern  is  ab- 
solutely necessary  for  the  actual  accommodation  of  travellers, 
at  the  place  where  the  applicant  resides,  or  proposes  to  keep  the 
same  ;  all  which  must  be  expressly  stated  ia  every  such  license. 
(Sec.  7.) 

Nor  can  a  license  be  granted  until  the  applicant  has  executed 
and  delivered  to  the  su{)ervisor,  or,  in  case  of  his  absence,  one  of 
the  Justices  of  the  town,  a  bond  to  the  people  of  the  state,  in  the 
penal  sum  of  one  hundred  and  twenty-five  dollars,  with  a  suffi- 
cient surety,  to  be  approved  by  the  board  of  coiimiissioners,  with 
a  condition,  that  the  applicant,  during  the  time  he  keeps  the  inn 
or  tavern,  will  not  sutler  it  to  bo  disorderly,  or  suffer  any  cock 
fighting,  gaming,  or  playing  with  cards  or  dice,  or  keep  any  billi- 
ard table,  or  other  gaming  table  within  the  tavern  so  kept  by  him, 
or  in  any  outhouse,  yard,  or  garden  belonging  thereto.     (Sec.  8.) 

The  commissioners  cannot  grant  licenses  to  grocers,  unless 
they  are  satisfied  that  the  applicant  is  of  a  good  moral  charac- 
ter, nor  until  the  applicant  has  executed  a  bond  to  the  people  of 
the  state,  in  the  penal  sum  of  one  hundred  and  twenty-five 
dollars,  with  such  surety  as  shall  be  approved  by  the  commis- 
sioners, conditioned  that,  during  the  term  for  which  his  license 
may  be  granted,  he  will  not  suffer  his  grocery  to  become  disor- 
derly ;  that  he  will  not  sell,  or  suffer  to  be  sold,  any  strong  or 
spirituous  liquors  or  wines,  to  be  drank  in  his  shop,  or  house,  or 
in  any  out  house,  yard,  or  garden,  appertaining  thereto  ;  and 
that  he  will  not  suffer  any  such  liquor,  sold  by  virtue  of  such 
license,  to  be  drank  in  his  shop,  or  house,  or  in  any  out  house, 
yard,  or  garden  belonging  thereto,     (Sec.  15.) 

24.  Fence  Viewers. 

The  assessors  and  commissioners  of  highways  in  each  town, 
are,  by  virtue  of  their  offices,  fence  viewers  in  their  town.  (1 
R.  S.  388,  sec.  8.) 

Fence  viewers  have  power,  and  it  is  their  duty,  to  settle  dis- 
putes concerning  division  fences,  and  floating  timber,  lumber, 
&,c.,  within  their  town;  to  ascertain  the  amount  of  damages  in 
cases   where  sheep   are  killed  or  injured   by  dogs*;  and  the 

*  The  legislature,  at  its  last  session,  gave  supervisors  authority  to  make  such  laws 
and  regulations  as  they  might  deem  necessary  to  prevent  the  injury  and  destruction 
of  sheep  hy  dogs,  and  to  levy  and  enforce  the  collection  of  any  tax  upon  dogs.  (Laws, 
1849,  cl).  194) 


576  OF  COUNTY  AND  TOWN  OFir'ICERS. 

charges  to  which  persons  keeping  strays  are  entitled.  (1  R.  S. 
401,  402,  855.) 

When  two  or  more  persons  have  lands  adjoining,  each  is  re- 
quired to  make  and  maintain  a  just  portion  of  the  division  fence, 
unless  the  overseer  or  overseers  of  the  adjoining  land  choose  to 
let  such  land  lie  open.     (1  K.  S.  402,  sec.  30.) 

"When  a  person  chooses  to  let  his  land  lie  open,  but  afterwards 
encloses  it,  he  is  required  to  refund  to  the  owner  of  the  adjoin- 
in»  land  a  just  proportion  of  the  value  at  that  time,  of  any  di- 
vision fence  that  shall  have  been  made  by  such  adjoining  own- 
er •  or  else  he  must  build  his  proportion  of  the  division  fence. 
The  value  of  the  fence,  the  proportion  to  be  paid  by  such  per- 
son and  the  proportion  of  the  division  fence  to  be  built  by  him 
in  case  of  his  enclosing  his  land,  is  to  be  determined  by  any 
two  of  the  fence  viewers  of  the  town.     (Id.  sec.  31,  32.) 

CERTIFICATE    OF     FENCE    VIEWERS,    AS    TO    VALUE     OF    FENCE 
BUILT    BY    AN    ADJOINING    OWNER. 

Broome  County,     'i  ^^^ 
Town  of  Chenango,  5 

P  This  is  to  certify,  that  Hobart  Eldredge  and  Richard  Bogart, 
being  the  owners  of  certain  lands  adjoining,  in  the  town  afore- 
said, and  the  said  Eldredge  having,  on  or  about  the  1st  day  of 
April,  1849,  erected  a  division  fence  between  the  land  belong- 
ing to  him,  and  that  of  the  said  Bogart,  who  elected  to  let  the 
same  lie  open  ;  and  the  said  Bogart  having  recently  enclosed 
the  said  land  belonging  to  him,  and  a  dispute  having  arisen  be- 
tween the  said  parties  as  to  the  just  proportion  of  the  value  of 
the  said  division  fence  to  be  paid  for  by  the  said  Bogart  :  We 
have  made  due  inquiry  into  the  facts,  and  examined  the  premi- 
ses; that  the  following  is  a  correct  description  of  the  fence  built 
by  the  said  Eldredge,  as  aforesaid,  to  wit: — [here  describe  the 
fence] ;  that  the  value  of  the  fence,  at  the  time  of  erecting  the 
same,  was  fifty  dollars;  and  that  the  just  proportion  of  said  va- 
lue, to  be  paid  by  the  said  Richard  Bogart  to  the  said  llobart 
Eldredge,  is  twenty  dollars,  and  that  the  fees  for  our  service 
amount  to  five  dollars. 

Given  under  our  hands  this  1st  day  of  July,  1849. 

Morgan  Lewis,     )  ,,  .^^^  v;„,„^,.„ 
'     [  1'  once  Viewers. 

Henry  Roberts,  S 
Tf  (lisp!itf  s  arise  between  the  owners  of  adjoining  lands,  con- 
cerning the  ))ioportioii  of  fence  to  be  maintained  or  made  by 


OF  COUNTY  AND  TOWN  OFFICERS.  577 

either  of  them,  such  disputes  are  to  be  settled  by  any  two  of 
tlie  fence  viewers  of  the  town.     (I  K.  S.  403,  sec.  33.) 

CERTIFICATE    OP     FENCE    VIEWERS     UPON    HEARING     DISPUTE 
BETWEEN    OWNERS    OF    ADJOINING    LANDS. 

Broome  County.       ) 

^        I  ss. 
Town  of  Chenango^    ) 

This  is  to  certify,  that  Alfred  Merill  and  Edward  White,  be- 
ing owners  of  certain  lands  adjoining,  in  the  town  aforesaid,  and 
a  dispute  having  arisen  between  them  as  to  the  respective  pro- 
portions of  a  division  fence,  to  be  maintained  [or  "  made"]  by 
them  ;  upon  the  application  of  the  said  parties,  we  proceeded  to 
examine  the  premises,  and  hear  the  allegations  of  the  said  par- 
ties ;  and  that  we  do  determine  that  the  said  division  fence  be 
built  in  manner  following  :  [here  give  description]  ;  that  two 
thirds  of  said  fence  is  the  proper  proportion  thereof  to  be  built  by 
the  said  Alfred  Merill ;  and  that  the  remaining  one  third  is  the 
proper  proportion  thereof,  to  be  built  by  the  said  Edward  White  ; 
and  that  our  fees  for  our  service,  amount  to  five  dollars. 

Given  under  our  hands,  this  first  day  of  July,  1849. 

Morgan  Lewis,    }  ^^  -t,-. 

rj  r>  I  r  ence  V  lewers. 

Henry  Koberts,  \ 

When  any  of  the  foregoing  matters  are  submitted  to  fence 
viewers,  each  party  must  choose  one  ;  and  if  either  neglect,  af- 
ter eight  days  notice,  to  make  such  choice,  the  other  party  may 
select  both.  In  case  of  their  disagreement,  they  must  select 
another  fence  viewer  to  act  with  them,  and  the  decision  of  any 
two  will  be  final  upon  the  parties  to  the  dispute,  and  upon  all 
parties  holding  under  them.  (Id.  sees.  34,  35.)  The  decision 
of  the  fence  viewers,  is  required  to  be  reduced  to  writing.  It 
must  contain  a  description  of  the  fence,  and  of  the  proportion  to 
be  maintained  by  each  ;  and  it  must  be  forthwith  filed  in  the 
ofiice  of  the  town  clerk.  (Sec.  36.) 

If  any  person  liable  to  contribute  to  the  erection  or  reparation 
of  a  division  fence,  neglects  or  refuses  to  make  and  maintain 
his  proportion  of  such  fence,  or  permits  the  same  to  be  out  of 
repair,  he  cannot  have  and  maintain  any  action  for  damages 
incurred,  but  he  will  be  liable  to  pay  to  the  party  injured  all 
such  damages  as  accrue  to  his  lands,  and  to  the  crops,  fruit 

37 


578  OF  COUNTY  AND  TOWN  OFFICERS. 

trees,  and  shrubbery  thereon,  and  fixtures  connected  with  the 
said  land,  to  be  ascertained  and  appraised  by  any  two  fence 
viewers  of  the  town,  and  to  be  recovered  with  costs  of  suit  ; 
which  appraisement  is  required  to  be  reduced  to  writing,  and 
signed  by  the  fence  viewers  making  it.  It  will,  however,  be 
only  fjrima  facie  evidence  of  the  amount  of  the  damages.  (1 
R.  S.  453,  sec.  39.) 

FORM    OF    FENCE    VIEWERS'    APPRAISEMENT. 


Broo7ne  County, 
Town  of  CJienangc 


'     \  ss. 

-•0.  \ 

Application  having  been  made  to  us,  by  Charles  Robinson, 
the  owner  of  land  adjoining  the  land  of  Tracy  Morgan,  in  said 
town  to  ascertain  and  appraise  certain  damages  incurred  by  the 
said  Robinson,  in  consequence  of  the  neglect  ("  or  refusal")  of 
the  said  Morgan  to  make  ("or  maintain")  his  proportion  of  a  di- 
vision fence  between  the  aforesaid  lands,  we  have  proceeded  to 
examine  the  premises,  and  after  due  inquiry  and  examination 
by  us  made,  we  do  determine  that  the  said  Charles  Robinson 
has  sustained  damage  to  his  land,  crops,  fruit  trees,  and  shrub- 
hexy,  in  consequence  of  the  neglect  ('•  or  refusal")  of  the  said 
Tracy  Morgan  to  make  ("  or  maintain")  his  proportion  of  such 
division  fence,  as  aforesaid,  which  said  damages  wq  have  ascer- 
tained, and  do  appraise  at  one  hundred  dollars. 

Given  under  our  hands  this  1st  day  of  July,  1849. 

Morgan  Lewis,     J  Pe„ce  Viewers. 
Henry  Roberts,  \ 

If  the  neglect  or  refusal  to  make  or  repair  the  fence,  after  a 
request  in  writing,  be  continued  for  the  period  of  one  month, 
the  party  injured,  may  make  or  repair  the  same,  at  the  expense 
of  the  party  so  neglecting  or  refusing,  to  bo  recovered  from  him 
with  costs  of  suit.     (Id.  sec.  38.) 

If  any  person  who  shall  have  made  his  proportion  of  a  divi- 
sion fence,  is  disposed  to  move  his  fence,  and  sulTer  his  lands  to 
lie  open,  he  may,  at  any  time,  between  the  fust  day  of  Novem- 
ber in  any  year,  and  the  first  day  of  April  following,  but  at  no 
other  time,  give  ten  days  notice  to  the  owner  or  occupant  of  the 
adjoining  land  of  his  int<iitinii  lo  a])|)ly  to  llie  fence  viewers  of 
the  town  for  pi^riMission  to  icniovc  liis  fence.  (I  R.  iS.  403, 
sr<c.  4U.j 


OF  COUNTY  AND  TOWN  OFFICERS.  579 


FORM    OF  NOTICE. 

To  Mr.  Richard  St.  John  : 

Please  take  notice,  that  I  shall  apply  to  Morgan  Lewis  and 
Henry  Roberts,  two  of  the  fence  viewers  of  the  town  of  Chenan- 
go, on  the  15th  day  of  March,  instant,  for  permission  to  remove 
the  division  fence  between  the  land  occupied  by  you  in  said 
town,  and  that  owned  and  occupied  by  me,  lying  adjacent 
thereto. 

Dated  March  2d,  1849.  Franklin  Whitney. 

If  at  the  time  specified  in  the  notice,  any  two  fence  viewers, 
selected  as  aforesaid,  determine  that  the  fence  may  with  pro- 
priety be  removed,  he  may  then  remove  the  same.     (Id.) 

determination  of  fence  viewers  that   division  fence 

MAY    BE    removed. 

Broome  County,    ) 
Town  of  Ghenango.  \ 

This  is  to  certify  that  we  the  undersigned,  two  of  the  fence 
viewers  of  the  town  aforesaid,  upon  the  application  of  Franklin 
Whitney,  in  accordance  of  a  notice,  a  copy  of  which  is  hereto 
annexed,  have  examined  the  premises  where  the  division  fence 
named  in  said  notice  is  situate,  and  do  determine  that  the  same 
may  with  propriety  be  removed. 

Given  under  our  hands  this  15th  day  of  March,  1849. 

Morgan  Lewis,     >  ^^^^^  Tmviexs. 
Henry  Koberts,  S 

It  is  provided  that  if  any  fence  is  removed,  without  notice  and 
permission  as  aforesaid,  the  party  removing  the  same  shall  pay 
to  the  party  injured,  all  such  damages  as  he  may  sustain  there- 
by, to  be  recovered  with  costs  of  suit.     (Id.  sec.  41.) 

Whenever  a  division  fence  is  injured  or  destroyed  by  floods 
or  other  casualty,  the  person  bound  to  make  and  repair  such 
fence,  or  any  part  of  it,  is  required  to  make  and  repair  the  same, 
or  his  just  proportion  thereof,  within  ten  days  after  he  shall  be 
required  by  any  person  interested  therein.  The  requisition 
must  be  in  writing  and  signed  by  the  party  making  it.  If  such 
person  refuses  or  neglects  to  make  or  repair  his  proportion  of 
such  fence,  for  the  space  of  ten  days  after  such  request,  the  par 


580  OF  COUNTY  AND  TOWN  OFFICERS. 

ty  injured  may  make  or  repair  the  same,  at  the  expense  of  the 
party  so  refusing  or  neglecting,  to  he  recovered  of  him  with 
costs  of  suit.     (1  R.  S.  454,  sec.  42,  43.) 

When  any  distress  is  made  of  any  beasts  doing  damage,  tlie 
person  distraining  is  required  to  keep  such  beasts  in  some  secure 
place  other  than  the  public  pound,  until  his  damages  are  ap- 
praised. AYithin  twenty-four  hours  after  such  distress,  unless 
the  same  was  made  on  a  Saturday,  in  which  case,  before  the 
Tuesday  morning  thereafter,  he  must  apply  to  two  fence  viewers 
of  the  town  to  appraise  the  damage.     (2  R.  S.  607,  sec.  1.) 

The  fence  viewers  must  thereupon,  immediately  repair  to  the 
place  and  view  the  damage  done  ;  and  they  may  take  the  evi- 
dence of  any  competent  witnesses  of  the  facts  and  circumstances 
necessary  to  enable  them  to  ascertain  the  extent  of  the  damages, 
for  which  purpose,  either  of  them  is  authorized  to  administer  an 
oath  to  every  such  witness.     (Id.  sec.  2.) 

The  fence  viewers  must  ascertain  and  certify,  under  their 
hands,  the  amount  of  the  damage,  with  their  fees  for  their  ser- 
vices ;  and  if  any  dispute  arises  touching  the  sufficiency  of  any 
fence  around  the  premises  where  the  damage  was  done,  the 
fence  viewers  may  examine  witnesses  in  relation  thereto,  and 
for  that  purpose,  may  administer  oaths  to  such  witnesses  ;  and 
the  fence  viewers  must  determine  the  dispute,  which  decision 
will  be  conclusive.     (Id.  sec.  2.) 

FENCE    viewers'    CERTIFICATE    WHERE    CATTLE   ARE    DIS- 
TRAINED   DOING    DAMAGE. 

Broome  County,      ; 

'J  own  of  Clienang  >j\^' ' 

Whereas,  application  was  made  to  us,  two  of  the  fencs  viewers 
of  the  said  town  of  Chenango,  county  aforesaid,  by  William 
{Stow,  of  the  said  town,  to  appraise  the  damages  done  by  a  brin- 
dle  heifer — [s^ive  us  ininute  a  descriplion  of  the  aniinul  as  pos- 
sible]— distrained  by  him  doing  damage  on  his  lands  :  This, 
therefore,  is  to  certify,  that  we  have  been  to  the  place  and  ascer- 
tained the  damage  to  amount  to  the  sum  of  twenty-five  dollars, 
and  that  the  fees  for  our  services  arc  seven  dollars. 

And  whereas,  a  dispute  has  arisen  between  the  said  William 
iSlow  of  the  one  part,  and  llein-y  IJrown  of  the  other  part, 
touching  the  sufllciency  of  the  fence  along  the  bank  of  the  Sus- 
([iielianna   river   on  the  premises  of  the  said  William  Stow, 


OF  COUNTY  AND  TOWN  OFFICERS.  581 

which  fence  has  been  viewed  by  us,  and  we  have  heard  the 
parties,  and  examined  witnesses  in  relation  thereto  ;  this,  tlieve- 
fore,  is  to  certify,  that  we  consider  the  said  fence  sufficient — [or 
"insufficient."] 
Given  under  our  hands,  this  1st  day  of  July,  1849. 

Morgan  Lewis,      ) 

TT  T?  [  Fence  Viewers. 

Henry  Koberts,   ) 

When  the  parties  cannot  agree  as  to  the  amount  of  the  dam- 
age sustained  by  the  owner  or  possessor  of  land  on  which  float- 
ing timber  or  lumber  has  drifted,  either  of  them  may  apply  to 
any  two  fence  viewers  of  the  town  in  which  such  timber  or 
lumber  may  be  found,  whose  duty  it  is,  after  hearing  the  proofs 
and  allegations  of  the  parties,  to  determine  the  amount  of  the 
damage  at  the  expense  of  the  owner  of  the  timber  or  lumber  ; 
and  their  decision  will  be  conclusive.  The  fence  viewers,  or 
either  of  them,  have  power  to  issue  process  for  such  witnesses 
as  may  be  desired  by  either  party,  and  to  administer  oaths  to  all 
witnesses  produced  before  them.     (1  R.  S.  877,  sees.  2,  3.) 

The  owner  of  any  sheep  or  lambs,  that  may  be  killed  or  in- 
jured by  any  dog,  may  apply  to  any  two  fence  viewers  of  the 
town,  who  must  inquire  into  the  matter,  and  view  the  sheep 
injured  or  killed,  and  may  examine  witnesses  in  relation  thereto, 
for  which  purpose  either  of  them  have  power  to  administer 
oaths.  If  they  are  satisfied  that  the  sheep  or  lambs  were  killed 
or  hurt  by  dogs,  and  in  no  other  way,  they  must  certify  such 
fact,  the  number  of  sheep  killed  or  hurt,  and  the  amount  of  the 
damage  sustained  by  the  owner,  together  with  the  value  of  the 
sheep  killed  or  hurt.     (1  R.  S.  88.5,  sec.  10.) 

Tlie  certificate  will  be  presumptive  evidence  of  the  facts 
therein  contained,  in  any  suit  that  may  be  brought  by  the  party 
injured  against  the  owner  or  possessor  of  any  dog,  provided  it 
appears  on  the  trial  of  such  suit,  that  due  notice  was  given  to 
the  owner  of  the  dog  of  the  intended  application  to  the  fence 
viewers.     (Id.  sec.  11.) 

It  is  provided,  that  every  person  who  shall  deliver  to  the 
clerk  of  his  town  a  note  in  writing,  containing  the  name  and 
place  of  abode  of  such  person,  and  the  age,  color,  and  n.arks, 
natural  and  artificial,  of  any  stray,  and  keep  any  stray  described 
therein,  shall,  if  the  stray  be  not  sooner  claimed  and  redeemed, 
between  the  first  day  of  May  and  the  twentieth  thereafter,  give 


682  OF  COUNTY  AND  TOWN  OFFICERS. 

notice  to  one  of  the  fence  viewers  of  the  town,  whose  duty  it  is 
to  ascertain,  according  to  the  best  of  his  knowledge  and  judg- 
ment, the  reasonable  charges  of  keeping  such  stray,  a  certificate 
whereof  must  be  given  by  him  to  the  person  applying  for  the 
same.     (1  R.  S.  401,  sec.  23.) 

CERTIFICATE    OF    FENCE    VIEWER    WHERE    STRAY    HAS    NOT 
BEEN    CLAIMED    OR    REDEEMED. 

Broome  County,     ) 
Town  of  ChenangOi  \ 

Notice  having  been  given  to  me,  the  undersigned,  one  of  the 
fence  viewers  of  the  town  aforesaid,  by  John  Brown  of  said 
town,  that  the  following  stray  animals,  to  wit :  [here  name  and 
describe  them,]  came,  on  or  about  the  25th  day  of  April,  1849, 
upon  the  enclosed  lands  of  the  said  John  Brown,  which  strays 
have  since  that  time  been  kept  by  the  said  John  Brown,  and 
now  remain  unclaimed  and  unredeemed  :  This,  therefore,  is  to 
certify,  that  I  have  ascertained,  according  to  the  best  of  my 
knowledge  and  judgment,  the  reasonable  charges  of  keeping 
such  strays,  and  that  the  same  amount  to  the  sum  of  fifteen 
dollars  and  seventy-five  cents  ;  and  that  the  fees  for  my  services 
amount  to  five  dollars. 

Given  under  my  hand,  this  5th  day  of  May,  1819. 

Morgan  Lewis,  Fence  Viewer. 

If  the  person  detaining  a  stray  and  the  owner  cannot  agree 
as  to  the  charges  to  be  paid,  at  the  time  of  redeeming  the  stray, 
such  charges  may  be  ascertained  and  certified  by  two  of  the 
fence  viewers  of  the  town,  to  be  selected  by  the  person  claiming 
the  same.     (1  R.  S.  401,  sec.  21.) 

The  certificate  in  the  last  mentioned  case,  may  be  readily 
drawn  from  the  forms  already  given. 

Witnesses  may  be  examined  by  fence  viewers  on  all  questions 
submitted  to  them  ;  and  either  of  such  fence  viewers  have  power 
to  issue  subpoenas  for,  and  to  administer  oaths  to,  such  witnesses. 
(1  R.  S.  404,  sec.  44.) 

25.  Compensation  of  County  and  Toivti  Officers. 

1.    FEES    OF  TIIK    HIIKHII'K. 

For  serving  process,  whore  there  shall  have  been  no  process 


OF  COUNTY  AND  TOWN  OFFICERS.  583 

previous  thereto,  fifty  cents.  For  traveling  in  making  any  such 
service,  six  cents  per  mile,  for  going  only,  to  be  computed  in  all 
cases,  from  the  court  jjonse  of  the  county  :  and  if  there  are  two 
or  more  court  houses,  to  be  computed  from  that  wiilch  is  the 
nearest  to  the  place  where  the  service  is  made.  {2  R.  S.  735, 
sec.  54.) 

For  taking  a  bond  on  the  arrest  of  a  defendant,  or  taking  his 
endorsement  of  appearance,  or  for  taking  a  bond  in  any  other 
case,  where  he  is  authorized  to  take  the  same,  for  which  no  fee 
is  otherwise  allowed,  thirty-seven  and  a  half  cents.  ([d.) 
For  a  certified  copy  of  such  bond,  twenty-five  cents. 

For  a  copy  of  any  writ  when  demanded,  or  required  by  law, 
nineteen  cents.     Returning  a  writ,  twelve  and  a  half  cents. 

For  serving  an  attachment  for  the  payment  of  money,  or  an 
execution  for  the  collection  of  money,  or  a  warrant  for  the  same 
purpose,  issued  by  the  comptroller  or  any  county  treasurer,  for 
collecting  the  sum  of  two  hundred  and  fifty  dollars,  or  less,  two 
cents  and  five  mills  per  dollar ;  and  for  every  dollar  collected 
more  than  two  hundred  and  fifty,  one  cent  and  two  and  one- 
half  mills. 

Advertising  goods  or  chattels,  lands  or  tenements,  for  sale  on 
any  execution,  two  dollars ;  and  if  the  execution  is  stayed  or 
settled,  after  advertising  and  before  sale,  one  dollar. 

The  fees  allowed  by  law  and  paid  by  the  sheriff  to  any  prin- 
ter for  publishing  an  advertisement  of  the  sale  of  real  esiate  for 
not  more  than  six  weeks,  and  for  continuing  such  advertisement 
more  than  six  weeks,  or  for  publishing  the  postponement  of  any 
such  sale,  and  the  expense  of  such  continuance  or  postponement, 
must  be  paid  by  the  party  requiring  the  same. 

The  fees  allowed  for  the  service  of  an  execution,  and  for  ad- 
vertising thereon,  must  be  collected  by  virtue  of  such  execution, 
in  the  same  manner  as  the  sum  therein  directed  to  be  levied  : 
but  when  there  are  several  executions  against  the  defendant,  at 
the  time  of  advertising  his  property,  in  the  hands  of  the  same 
sheriff,  there  can  be  but  one  advertising  fee  charged  on  the 
whole,  and  the  sheriff  must  elect  on  which  execution  he  will 
receive  the  same. 

For  drawnig  every  certificate  of  sale,  where  the  execution  is 
over  two  hundred  and  fifty  dollars,  in  the  Supreme  Court,  for 
every  one  hundred  words,  twenty-five  cents.  For  a  copy  of 
the  same  for  every  one    hundred  words,  twelve  and   a    half 


584  OF  COUNTY  AND  TOWN  OFFICERS. 

cents — but  no  charge  for  more  than  two  copies.  For  drawing 
the  like  certificate  in  the  Supreme  Court,  when  the  sum  in  the 
execution  is  two  hundred  and  fifty  dollars,  or  under,  for  every 
one  hundred  words,  eighteen  cents.  For  copying  the  same,  not 
more  than  two  copies,  for  every  one  hundred  words,  nine  cents. 

For  drawing  and  executing  a  deed,  pursuant  to  a  sale  of  real 
estate,  one  dollar,  to  be  paid  by  the  grantee  in  such  deed. 

Serving  a  writ  of  possession  or  restitution,  putting  any  person 
entitled  into  the  possession  of  premises,  and  removing  the  tenant, 
one  dollar  and  twenty-five  cents;  and  traveling  fees  on  the 
same,  for  each  and  every  mile  going,  six  cents. 

Taking  a  bond  for  the  liberties  of  the  jail,  thirty-seven  and 
a  half  cents. 

For  any  person  committed  to  jail  on  civil  process,  and  for 
every  person  discharged  from  jail  on  civil  process,  for  receiving, 
twenty-five  cents  ;  for  discharging,  twenty-five  cents  ;  to  be  paid 
by  the  plaintiff  in  the  process. 

For  summoning  a  jury  to  any  court,  for  each  cause  noticed 
for  trial,  or  placed  upon  the  calendar  for  trial,  fifty  cents. 

Summoning  a  jury  upon  a  wiit  of  inquiry,  and  returning  the 
inquisition,  and  attending  such  jury,  one  dollar  and  fifty  cents. 

Sumiiioning  a  jury  in  any  case  where  it  shall  be  necessary  to 
try  the  title  to  personal  property,  attending  such  jury,  and  re- 
turning the  inquisition,  one  dollar  and  fifty  cents. 

Summoning  a  foreign  or  special  jury  pursuant  to  a  venire  for 
that  purpose,  and  returning  the  panel  of  jurors,  one  dollar,  twelve 
and  a  half  cents. 

Summoning  a  jury  pursuant  to  any  precept  or  summons  of 
any  officer,  in  any  special  proceeding,  one  dollar :  attending 
such  jury  when  required,  fifty  cents. 

Bringing  a  jirisoner  up,  on  habeas  corpus,  to  testify  or  answer 
in  any  court,  one  dollar  and  fifty  cents  :  for  travelling  each  mile 
with  such  prisoner  from  the  jail,  twelve  and  a  half  cents  :  for 
attending  any  court  with  such  prisoner,  for  each  day,  one  dol- 
lar, and  all  actual  necessary  expenses. 

Bringing  up  any  prisoner  upon    any  habeas  corpus,  with  the 
cause  of  his  arrest  and   detention,  one  dollar  and    fifty  cents 
travelling  with  such  j)risoner,  for  each  mile  from  the  jail,  twelve 
and  a  li.ilf  cents. 

Attending  before  any  officer  with  a  prisoner  for  the  purj)ose  of 
having  liirn  surrendered,  in  exoneration   of  his  bail,  one  dollar: 


OF  COUNTY  AND  TOWN  OFFICERS.  585 

attending  to  receive  a  prisoner  so  surrendered  who  was  not  com- 
mitted at  the  time,  and  receiving  such  prisoner  in  custody,  one 
dollar. 

Attending  a  view,  for  each  day's  attendance,  one  dollar  and 
eighty-seven  and  a  half  cents  :  for  each  day's  going,  one  dollar 
and  twenty-five  cents  cents  :  for  each  day's  returning,  one  dollar 
and  twenty-five  cents. 

Serving  an  attachment  upon  ships  or  vessels,  or  upon  the  pro- 
perty of  any  debtor,  fifty  cents,  with  such  additional  compensa- 
tion for  his  trouble  and  expenses  in  taking  possession  of  and 
preserving  the  property  attached  as  the  officer  issuing  the  war- 
rant shall  certify  to  be  reasonable.  When  the  property  so  at- 
tached is  sold  by  the  sheriff,  for  collecting  the  sum  of  ;|250  or 
less,  for  each  dollar,  two  and  a  half  cents ;  and  for  every  dollar 
collected  more  than  two  hundred  and  fifty,  one  and  a  quarter 
cents:  for  making  and  returning  an  inventory  and  appraisal — 
such  compensation  not  exceeding  one  dollar  per  day  to  each  of 
the  appraisers,  for  each  day  actually  employed — as  the  officer 
issuing  the  attachment  shall  allow:  for  drafting  the  inventory, 
when  the  sum  is  over  two  hundred  and  fifty  dollars,  for  every 
hundred  words,  twenty-five  cents  :  for  copying  the  same,  for 
every  hundred  words,  twelve  and  a  half  cents  :  for  drafting  the 
inventory,  where  the  property  attached  is  of  the  value  of  $250 
or  less,  for  every  hundred  words,  eighteen  cents:  for  copying 
the  same,  for  every  hundred  words,  nine  cents :  for  advertising 
the  sale  of  the  property  attached,  two  dollars ;  if  settled  before 
sale,  and  after  advertising,  one  dollar ;  and  the  same  rule  as  to 
printers'  fees,  as  upon  executions. 

For  executing  any  warrant,  to  remove  any  person  from  lands 
belonging  to  the  people  of  this  state,  or  to  Indians,  such  sum  as 
the  comptroller  shall  audit  and  certify  to  be  a  reasonable  com- 
pensation. 

For  giving  notice  of  any  general  or  special  election  to  the  elec- 
tors of  the  different  towns  or  wards  in  his  county,  for  each  town 
or  ward,  one  dollar;  and  the  expenses  of  publishing  such  no- 
tices as  required  by  law,  to  be  paid  by  the  county  as  a  part  of 
the  contingent  expenses  thereof. 

For  summoning  constables  to  attend  the  Supreme  Court,  or 
any  other  court,  fifty  cents  for  each  constable. 

For  each  day's  attendance  upon  the  Supreme  Court,  two  dol- 
lars. 


586  OF  COUNTY  AND  TOWN  OFFICERS. 

For  mileage  on  every  execution,  for  each  mile  going  only,  six 
cents. 

For  every  person  committed  to  prison,  thirty-seven  and  a  half 
cents  :  for  every  prisoner  discharged  from  prison,  thirty-seven 
and  a  half  cents. 

For  summoning  a  grand  jury  for  a  Court  of  Oyer  and  Ter- 
miner, or  General  Sessions,  ten  dollars. 

For  serving  a  warrant,  or  performing  any  other  duty  which 
may  be  performed  by  a  constable,  the  same  fees  as  are  allowed 
by  law  to  a  constable  for  such  service. 

For  transporting  convicts  to  the  several  state  prisons  and 
houses  of  refuge  of  this  state,  as  follows  :  for  conveying  a  single 
convict  to  a  state  prison  or  house  of  refuge,  for  each  mile  from 
the  county  prison  from  which  such  convict  shall  be  conveyed, 
thirty-five  cents  :  for  conveying  two  convicts,  for  each  mile 
aforesaid,  forty-five  cents;  for  conveying  three  convicts,  fifty 
cents;  for  conveying  four  convicts,  fifty-five  cents;  for  convey- 
ing five  convicts,  sixty  cents ;  and  for  all  additional  convicts, 
such  reasonable  allowance  as  the  comptroller  may  think  just — 
which  allowance,  with  one  dollar  per  day  for  the  maintenance 
of  each  convict  whilst  on  the  way  to  the  state  prison,  but  not 
exceeding  one  dollar  for  every  thirty  miles  travel,  is  in  full  of  all 
charges  and  expenses  in  the  premises.     (Laws,  1849,  ch.  123.) 

'  2.  COMPENSATION    OF   COUNTY  JUDGE. 

The  coimty  judge  receives  an  annual  salary  which  is  fixed 
by  the  board  of  supervisors  of  his  county,  and  which  can  neither 
be  increased  nor  diminished  dining  his  continuance  in  oifice. 
(Const,  art.  4,  sec.  14.)  He  must  be  paid  at  the  close  of  each 
quarter.  (Laws,  1847,  ch.  277.)  Any  fees  received  by  the 
county  judge  for  official  services,  must  be  paid  into  the  county 
treasury. 

3.    FEES    OF    COUNTY    CLERK. 

For  searching  the  records  in  his  oflice,  or  the  records  of  mort- 
gages deposited  in  his  d/iicc,  by  loan  officers  and  commissioners 
of  loans,  or  the  dockets  of  jiidgiucnls  :  for  each  year,  five  cents  : 
(2  R.  S.  729,  sec.  40:)  for  searching  and  certifying  the  title  of, 
and  incunibrances  upon,  real  estate,  (en  cents  for  each  convey- 
ance and    ineunibrance   certifuul   by  him,  instead  of  fees  now 


OF  COUNTY  AND  TOWN  OFFICERS.  587 

allowed  by  law,  provided  that  such  fees  in  no  case  amount  to  less 
than  fifty  cents,  nor  more  than  five  dollars.     (Sec.  41.) 

Recording  conveyances  of  real  estate,  and  all  other  instru- 
ments which  by  law  maybe  recorded,  ten  cents  for  each  folio. 

Filing  every  certificate  of  the  satisfaction  of  a  mortgage,  and 
entering  such  satisfaction,  twenty- five  cents. 

Entering  a  minute  of  a  mortgage  being  foreclosed,  ten  cents. 

Entering  in  a  book  the  bond  of  every  collector,  twelve  and  a 
half  cents. 

Searching  for  such  bond,  six  cents :  entering  satisfaction  there- 
for, twelve  and  a  half  cents. 

Receiving  and  filing  every  paper  deposited  with  him  for  safe 
keeping,  three  cents  :  searching  for  every  such  paper,  on  request, 
three  cents  for  each  paper  examined. 

Receiving  and  filing  the  papers  of  any  insolvent,  or  relating 
to  the  proceedings  against  any  absent,  concealed,  absconding,  or 
imprisoned  debtor,  twelve  and  a  half  cents  in  each  case ;  and 
such  papers  are  not  to  be  charged  as  having  been  separately 
filed  :  searching  for  such  papers,  six  cents  for  each  year  for 
which  searches  shall  be  made. 

For  determining  and  certifying  the  sufficiency  of  the  sureties 
of  any  sheriff,  fifty  cents. 

For  every  report  upon  the  title  of  the  parties  in  partition,  pur- 
suant to  a  reference  for  that  purpose,  one  dollar. 

For  every  report  respecting  the  incumbrances  upon  the  estate, 
or  interest  of  any  party  in  partition,  pursuant  to  a  rule  or  order 
for  that  purpose,  one  dollar. 

For  investing  the  proceeds  of  the  sale  of  any  estate,  tuider  pro- 
ceedings in  partition,  pursuant  to  the  order  of  the  court,  one 
half  of  one  per  cent  upon  any  sum  not  exceeding  two  hundred 
dollars,  and  one  quarter  of  one  per  cent  for  any  excess  :  for  re- 
ceiving the  interest  upon  such  investments,  and  paying  over  the 
same  to  the  persons  entitled,  one  half  of  one  per  cent. 

For  attendance  in  canvassing  the  votes  given  at  any  election, 
two  dollars  :  for  drawing  all  necessary  certificates  of  the  result 
of  such  canvass,  and  copies  thereof,  three  dollars:  for  recording 
such  certificate?,  ten  cents  for  each  folio. 

For  making  and  transmitting  certified  copies  of  the  returns  of 
commissioners  of  common  schools,  six  cents  for  each  folio,  to  be 
paid  by  the  county. 

For  giving  notice  to  the  governor  of  persons  who  have  taken 


588  OF  COUNTY  AND  TOWN  OFFICERS. 

the  oaths  of  office,  three  cents  for  each  name  :  for  giving  such 
notice  of  persons  who  have  neglected  to  take  the  oath  of  office, 
or  to  file  or  renew  any  security  within  tlie  time  required  by  law 
and  of  any  vacancy  created  by  any  officer  dying  or  removing 
out  of  the  county  or  place  for  which  iie  was  appointed,  and  of 
all  other  vacancies  in  his  county,  six  cents  for  each  name  so  re- 
ported. 

Notifying  every  person  appointed  to  office,  twenty-five  cents; 
and  all  expenses  actually  and  necessarily  incurred  by  liim  in 
giving  any  notice  which  the  comptroller  shall  deem  reasonable. 

For  searching  for  a  bail  piece,  and  annexing  it  to  the  recog- 
nizance roll,  twelve  and  a  half  cents. 

For  recording  every  certificate  of  incorporation  authorized  by 
lawto  be  recorded,  seventy-five  cents. 

For  entering  in  the  minutes  of  the  court  a  license  to  keep  a 
ferry,  and  for  a  copy  thereof,  one  dollar:  for  taking  and  entering 
a  recognizance  from  any  person  authorized  to  keep  a  ferry 
twenty  five  cents. 

Swearing  a  witness,  six  cents. 

Entering  or  respiting  a  recognizance,  twelve  and  a  half  cents. 

Calling  or  swearing  a  jury,  nineteen  cents. 

Entering  a  sentence  in  the  minutes  kept  by  him,  twelve  and 
a  half  cents ;  and  the  like  fee  for  every  certified  copy  thereof, 
and  for  a  transcript  thereof,  for  the  secretary  of  state. 

Copies  of  records,  indictments,  and  other  proceedings,  the  like 
fees  as  are  allowed  in  civil  cases,  for  copies  of  papers  filed  in  his 
office.     (2  R.  S.  837,  sec.  6.) 

The  statute  provides  that  all  clerks  and  registers  of  counties 
claiming  any  fees  by  virtue  of  their  respective  offices,  shall, 
upon  being  required  in  writing  by  the  party  liable  to  pay  the 
same,  his  agent,  or  attorney,  and  on  payment  of  the  expense 
thereof,  have  their  fees  taxed  by  some  officer  authorized  to  tax 
costs  in  the  Supreme  Court ;  and  either  party  may  appeal  from 
such  taxation  to  the  Supreme  Court.  No  clerk  or  register  can 
collect  any  fees,  after  having  been  required,  as  aforesaid,  to  have 
the  same  taxed,  without  such  taxation  having  been  made.  The 
fee  for  such  taxation  nuist  hn  fifty  cents.  (Id.  730,  sees.  42,  43, 
and  /11.) 

Tin;  clerk  of  the  city  and  county  of  New  York  receives  a  sa- 
lary of  two  thousand  i'lva  hundred  dollars  a  year,  which  is  in  lieu 
of  all  f;es,  perquisites  and  emoluments  for  discharging  the  duties 


OF  COUNTY  AND  TOWN  OFFICERS.  589 

of  county  clerk,  clerk  of  the  Court  of  Common  Pleas,  clerk  of  the 
Supreme  Court  in  law  and  equity,  and  for  the  performance  of 
all  other  duties  prescribed  by  law,  directly  or  indirectly,  or  which 
he  may  perform  by  virtue  of  his  office.  (Laws,  1847,  ch.  432, 
sec.  3.)  All  the  fees,  perquisites  and  emoluments  received  by 
such  clerk  for  official  services,  belong  to  the  city  and  county  of 
New  York,  and  must  be  collected,  and  accounted  for,  and  paid 
into  the  treasury  of  said  city  and  county.     (Id.  sec.  1.) 

4.  COMPENSATION  OF  SURROGATE. 

When  any  separate  officer  is  elected  to  perform  the  duties  of 
the  office  of  surrogate,  he  is  entitled  to  an  annual  salary,  which 
must  be  fixed  by  the  board  of  supervisors,  and  paid  at  the  close 
of  each  quarter  by  the  county  in  wfiich  h^!  is  elected.  Such 
salary  cannot  be  increased  or  diminished  during  his  continuance 
in  office.  (Laws,  1847,  ch.  277,  sec.  4.)  All  fees  and  perquisites 
received  by  the  surrogate  for  official  services,  must  be  paid  into 
the  county  treasury.     (Sec.  4.) 

5.    FEES    OF    DISTRICT    ATTORNEY. 

For  drawing  every  indictment  actually  agreed  to  by  a  grand 
jury,  including  such  as  may  be  prepared  by  their  direction, 
though  not  finally  agreed  to  by  them,  twenty-two  cents  for  each 
folio,  and  fifteen  cents  per  folio  for  engrossing  the  same  ;  but  no 
more  than  tvvo  counts  in  any  indictment  for  the  same  offence 
can  be  allowed  and  taxed,  unless  the  presiding  judge  of  the 
court  at  which  the  indictment  was  found,  or  the  judge  of  the 
county,  certify  that  the  additional  accounts  are,  in  his  opinion, 
necessary ;  and  the  like  fees  for  drawing  and  engrossing  every 
affidavit  and  other  proceeding,  actually  and  necessarily  prepared 
by  such  district  attorney,  in  the  prosecution  of  any  cause,  and 
for  which  no  fee  is  specifically  allowed  ;  but  it  will  not  be 
deemed  necessary,  nor  can  any  allowance  be  made  for  the  draft 
or  copy  of  any  affidavit  or  service  of  subpoena,  unless  it  be  upon 
the  actual  default  of  a  witness  to  attend  court,  and  where  it  is 
necessary  to  attach  such  witness  to  procure  his  attendance. 

For  every  bench  warrant,  or  other  process,  actually  and  ne- 
cessarily issued,  to  bring  a  party  into  court,  twenty-five  cents  ; 
but  no  allowance  can  be  made  for  more  than  one  warrant  on 
any  indictment,  where  the  defendants  reside  in  the  same  county, 


590  01*'  COUNTY  AND  TOWN  OFFICERS. 

nor  for  a  second  warrant  on  the  same  indictment,  unless  a  pre- 
vious warrant  shall  have  been  duly  returned  not  served,  after  a 
reasonable  tim.e  allowed  for  its  service. 

For  every  subpoena  actually  and  necessarily  issued,  returnable 
before  a  grand  jury  or  court,  twenty-five  cents,  including  sub- 
poena ticket ;  but  no  other  allowance  can  be  made  for  any  draft 
or  copy  of  subpoena,  or  any  draft  or  copy  of  subpoena  ticket  for 
any  witness;  and  no  more  than  one  subpoena  and  subpoena 
ticket  can  be  allowed  for  each  witness  subpoenaed,  either  before 
the  grand  jury  or  court ;  and  no  allowance  can  be  made  for  any 
subpoena  and  subpoena  ticket,  issued  for  the  same  witness  more 
than  once,  in  the  same  cause,  except  when  it  becomes  necessary 
to  subpoena  the  same  witness  before  the  court,  after  having  been 
subpoenaed  before  the  grand  jury. 

For  arguing  every  special  motion  actually  made  after  notice 
given  by  the  district  attorney,  or  after  notice  given  in  behalf  of 
the  defendant,  one  dollar  and  twenty-five  cents ;  but  no  fees  are 
allowed  for  arraigning  a  prisoner,  recognizing  a  witness  or  a 
party,  or  moving  on  a  cause  for  trial,  or  putting  over  a  trial,  or 
opposing  a  motion  to  put  over  a  trial,  or  for  making  or  opposing 
any  other  ordinary  motion. 

For  every  trial  fee,  four  dollars — such  fee  not  to  be  allowed 
unless  the  trial  actually  takes  place  ;  and  the  like  fee  for  argu- 
ing every  motion  for  a  new  trial  or  demurrer,  or  motion  in  arrest 
of  judgment,  or  bill  of  exceptions,  or  writ  of  error. 

For  making  up  a  record  when  required  by  order  of  a  judge  of 
the  court  in  which  the  defendant  is  arraigned  or  convicted, 
twenty-two  cents  for  drawing  every  folio,  and  fifteen  cents  per 
folio  for  engrossing  ;  and  the  like  compensation  must  be  paid  to 
the  district  attorney  by  the  defendant,  for  making  up  such  re- 
cord, when  made  at  the  request  of  the  defendant;  and  the  like 
fees  for  engrossing  a  bill  of  costs.     (2  R.  S.  838.) 

The  bills  of  costs  of  the  district  attorney  are  taxed  before  the 
board  of  supervisors  of  his  county,  by  a  taxing  officer  designa- 
ted by  the  board.  For  the  manner  of,  and  the  proceedings  on 
the  taxation,  the  reader  is  referred  to  2  R.  S.,  page  839. 

In  some  of  the  counties,  the  district  attorney,  in  lieu  of  fees, 
receives  an  annual  salary  which  is  fixed  by  the  board  of  super- 
visors of  the  county. 

The  district  attorney  of  the  city  and  county  of  New  York  re- 
ceives for  his  .services  an  annual  salary  not  less  than  two  thou- 


OF  COUNTY  AND  TOWN  OFFICERS.  59I 

sand  five  hundred  dollars,  and  not  exceeding  three  thousand 
five  hundred  dollars,  to  be  fixed  and  paid  by  the  Common 
Council  of  that  city.     (1  R.  S.  438.  sec.  128.) 

6.  FEES    OF    COUNTY   TREASURER. 

It  is  enacted  that  the  several  county  treasurers  of  the  state 
shall  hereafter  receive  for  their  services  such  compensation  as 
shall  be  fixed  by  the  respective  boards  of  supervisors  of  their 
respective  counties,  not  exceeding  the  half  of  one  per  cent,  for 
receiving,  and  the  half  of  one  per  cent,  -for  disbursing, — and  in 
no  case  to  exceed  the  sum  of  five  hundred  dollars  per  annum. 
(Lavirs,  1846,  ch.  189.) 

7.  COMPENSATION    OF   CORONERS. 

It  is  enacted  that  the  compensation  to  be  paid  to  the  coroners 
of  the  several  cities  and  counties  of  the  state  for  holding  any 
inquest  in  the  cases  authorized  by  law.  shall  be  fixed,  and,  to- 
gether with  all  necessary  incidental  expenses,  shall  be  audited 
and  allowed,  by  the  board  of  supervisors  of  the  respective  coun- 
ties, and  paid  in  like  manner  as  the  county  charges.  (2  R.  S. 
840,  sec.  10.) 

The  same  fees  are  also  allowed  coroners,  for  services  rendered 
by  them,  as  are  allowed  to  sheriffs  for  similar  services.  (Id. 
737,  sec.  .55.) 

8.    COMPENSATION    OF    SUPERINTENDENTS    OF   THE    POOR. 

It  is  provided  that  the  county  superintendents  of  the  poor 
shall  be  allowed  such  sum  for  their  services  as  the  board  of  su- 
pervisors of  their  county  shall  deem  reasonable.  (I  R.  S.  784, 
sec.  15.) 


Commissioners  of  loans  are  entitled  to  retain  for  their  ser- 
vices, upon  every  sum  not  over  twenty-five  thousand  dollars 
committed  to  their  charge,  not  over  three-quarters  of  one  per 
cent. ;  upon  the  further  sum  of  twenty-five  thousand  dollars,  or 
less,  half  of  one  per  cent. ;  and  where  the  whole  sum  exceeds 
fifty  thousand  dollars,  half  of  one  per  cent.,  except  in  the  city 
and  county  of  New  York,  where  it  is  one-quarter  of  one  per 
cent. 


592  OF  COUNTY  AND  TOWN  OFFICERS. 

10.    FEES    OF    notaries'    PUBLIC. 

Notaries  are  not  allowed  to  receive,  for  the  protest  for  uoii 
payment  of  any  note,  or  for  the  non  acceptance  or  non  payment 
of  any  bill  of  exchange,  check,  or  draft,  including  giving  the 
requisite  notices  and  certificates  of  protest,  and  the  affixing  his 
seal  thereto,  any  more  fee  or  reward  than  seventy-five  cents.  (2 
R.  S.  738,  sec.  57.) 

11.   COMPENSATION    OF    SEALER    OF   WEIGHTS    AND    MEASURES. 

Each  sealer  is  entitled  to  receive,  for  sealing  and  marking 
every  beam,  twelve  and  a  half  cents ;  every  measure  of  exten- 
sion, twelve  and  a  half  cents  per  yard,  but  not  more  than 
fifty  cents  for  any  one  measure  ;  for  sealing  and  marking  every 
weight,  three  cents ;  for  sealing  and  marking  liquid  and  dry 
measures,  if  they  are  less  than  a  gallon,  three  cents;  if  of  a 
gallon  or  more,  twelve  and  a  half  cents ;  and  a  reasonable  com- 
pensation for  making  such  weights  and  measures,  conform  to 
the  legal  standard,     (1  R.  S.  779,  sec.  32.) 

12.  COMPENSATION    OF    SUPERVISORS. 

Each  member  of  the  board  of  supervisors  is  allowed  a  com- 
pensation for  his  services  and  expenses  in  attending  the  meet- 
ings of  the  board,  at  the  rate  of  two  dollars  a  day.  The  clerk 
of  the  board  is  entitled  to  a  reasonable  compensation,  to  be  fixed 
by  the  board,  and  paid  by  the  county.  Each  supervisor  is  en- 
titled to  receive,  over  and  above  the  per  diem  compensation,  eight 
cents  per  mile  for  all  necessary  travel  in  the  discharge  of  his 
official  duties,  and  three  cents  for  each  name  (for  making  a  copy 
of  the  assignment  roll  of  his  town,  and  making  out  the  tax  bill, 
to  be  delivered  to  the  collector)  for  the  first  hundred  names,  two 
cents  per  name  for  the  second  hundred  names,  and  one  cent  per 
name  for  each  name  over  two  hundred.  But  no  per  diem  al- 
lowance can  be  made  to  any  supervisor,  while  employed  in 
making  out  such  copy  or  tax.     (  Vide  Lmvs,  1849.) 

13.  CUMPr.N.SATION    OF    TOWN    CLERK. 

The  statute  ])rovides  that  the  town  clerk  shall  be  entitled  to 
such  compensation  for  his  services  as  the  board  of  supervisors 
of  his  county  shall  allow. 

Id.    COMIMONHATION    OF    ASSESSORS. 

Assessors  are  allowed  one  dollar  and  twenty-five  cents,  each, 
for  every  day,  while  attending  to  the  duties  of  their  office. 


OF  COUNTY  AND  TOWN  OFFICERS.  593 

15,  FEES    OP    COLLECTOR. 

Town  collectors  are  allowed  two  per  cent,  fees  on  all  volun- 
tary payments  made  to  them,  within  thirty  days  from  the  post- 
ing of  the  notices  requried  by  law  in  all  cases  where  the  aggre- 
gate amount  to  be  collected  by  warrants,  when  put  into  their 
hands,  shall  not  exceed  the  sum  of  two  thousand  dollars.  They 
are  entitled  to  collect  five  per  cent,  fees  for  all  unpaid  taxes  ; 
and  whenever  any  collector  makes  return  to  the  county  treasurer 
for  any  unpaid  taxes,  he  must  add  to  the  several  sums  so  re- 
turned by  him,  five  per  cent.,  which  must  go  to  the  credit  of  the 
county,  and  be  collected  with  said  unpaid  taxes ;  and  the  col- 
lector will  be  entitled  to  receive  from  the  county  treasury,  and 
be  paid  by  the  treasurer,  two  per  cent,  as  fees  for  all  taxes  so 
returned  by  him.    (Laws,  1847,  chs.  482,  455.) 

16.  FEES    OF   CONSTABLE. 

For  serving  a  warrant  or  summons,  twelve  and  a  half  cents  : 
for  a  copy  of  every  summons  delivered  on  request,  or  left  at  the 
dwelling  of  the  defendant,  in  his  absence,  nine  cents  :  for  serv- 
ing an  attachment,  fifty  cents  :  for  a  copy  thereof,  and  an  inven- 
tory of  the  property  seized,  left  at  the  last  residence  of  the  de- 
fendant, fifty  cents  :  for  serving  an  execution,  five  cents  for  every 
dollar  collected  to  the  amount  of  fifty  dollars,  and  two  and  a 
half  cents  for  every  dollar  collected  over  fifty  dollars  :  for  every 
mile,  going  only  more  than  one  mile,  when  serving  a  summons, 
warrant,  attachment  or  execution,  six  cents,  to  be  computed  from 
the  place  of  abode  of  the  defendant,  or  where  he  shall  be  found, 
to  the  place  where  the  precept  is  returnable  :  for  notifying  a 
plaintiff  of  the  service  of  a  warrant,  twelve  and  a  half  cents: 
and  for  going  to  the  plaintiff's  residence,  or  where  such  notice 
was  served,  six  cents  for  every  mile  more  than  one  :  for  sum- 
moning a  jury,  fifty  cents.     (2  R.  S.  360.) 

For  serving  a  summons  in  special  proceedings  in  civil  cases, 
twelve  and  a  half  cents  ;  mileage,  for  going  only,  six  cents  for 
each  mile  :  for  advertising  and  selling  any  property,  or  levying 
any  fine,  penalty  or  sum,  pursuant  to  any  warrant,  the  same 
fees  as  are  allowed  for  similar  services  on  executions  from  Jus- 
tices' courts :  for  arresting  and  committing  any  person  pursuant 
to  process,  fifty  cents  ;  and  mileage,  for  going  only,  six  cents  : 
for  any  service  not  herein  provided  for,  which  may  be  rendered 

38 


594  OF  COUNTY  AND  TOWN  OFFICERS. 

by  a  constable,  the  same  fees  as  are  allowed  by  law  to  sheriffs 
for  similar  services  :  for  attending  any  court,  pursuant  to  a  no- 
tice from  the  sheriff  for  that  purpose,  one  dollar  and  fifty  cents 
a  day  in  the  city  of  New  York,  and  one  dollar  and  twenty-five 
cenis  a  day  in  each  of  the  other  counties  of  the  state ;  which 
fees  are  chargeable  to  the  county,  and  must  be  paid  by  the 
county  treasurer,  on  the  production  of  the  certificate  of  the 
clerk,  specifying  the  number  of  days  such  constable  shall  have 
attended.     (2  R.  S.  738,  sec.  56.) 

For  serving  a  warrant  or  other  process,  for  the  arrest  of  any 
person,  issued  by  any  magistrate  or  court,  fifty  cents  ;  and  the 
same  fees  for  travelling  to  make  such  service  as  are  allowed  for 
serving  a  warrant  in  civil  cases :  taking  a  defendant  into  cus- 
tody on  a  mittimus,  twelve  and  a  half  cents  :  conveying  a  per- 
son to  the  magistrate  or  court  before  whom  he  is  to  be  brought, 
or  to  jail,  twelve  and  a  half  cents,  if  within  one  mile  ;  and  for 
every  mile  more,  going  only,  six  cents :  serving  a  subpoena, 
twelve  and  a  half  cents  for  each  witness,  and  the  like  mileage 
as  above  provided  ;  but  mileage  can  be  allowed  only  on  the 
distance  actually  and  necessarily  travelled.     (Id.  836,  sec.  5.) 

It  is  enacted  that  whenever  a  subpoena  for  witnesses  in  crim- 
inal cases  or  complaints,  containing  one  or  more  names,  shall  be 
served  by  a  constable  or  other  officer,  such  officer  shall  be  allowed 
for  mileage  only,  for  the  distance,  going  and  returning,  actually 
travelled  to  make  such  service  upon  all  the  witnesses  in  such  case 
of  complaint,  and  not  separate  mileage  for  each  witness,  unless 
the  board  of  supervisors,  auditing  accounts  for  such  services, 
shall  deem  it  equitable  to  make  a  further  allowance.     (Id.) 

The  board  of  supervisors  may  allow  such  further  compensa- 
tion for  the  service  of  process,  and  the  expenses  and  trouble 
attending  the  same,  as  they  shall  deem  reasonable.     (Id.) 

For  other  services  in  criminal  cases,  for  which  no  compensa- 
tion is  specially  provided  by  law,  the  constable  is  entitled  to 
such  sum  as  the  board  of  supervisors  of  the  county  shall  allow. 
(Ibid.) 

17.    COMI'ENSATION    OP   COMMISSIONEHS    OF    HIGHWAYS. 

Commissioners  of  highways  are  allowed  one  dollar  for  every 
day  l!i;it  llniy  ;irc  engaged  in  th(!  discharge  of  their  duties.  (I 
R.  S.  4U8,  sec.  '1'.).) 


OF  COUNTY  AND  TOWN  OFFICERS.  595 

18,  COMPENSATION    OF   OVEUSEERS    OP   HIGHWAYS. 

If  any  overseer  is  employed  more  days  in  executing  his  du- 
ties than  he  is  assessed  to  work  on  the  highways,  he  is  entitled 
to  seventy-five  cents  for  every  day  of  such  excess  which  he  may 
retain  from  any  fines  coming  into  his  hands.     (Id.  618,  sec'  13.) 

19.  COMPENSATION    OF   OVERSEERS    OF   THE   POOR. 

Overseers  of  the  poor  are  entitled  to  one  dollar  a  day  for  their 
services,  to  be  audited  and  paid  as  other  town  charges,  except 
where  the  service  relates  to  county  paupers,  when  it  is  to  be 
paid  by  the  county  treasurer.     (Id.  408.) 

20.  COMPENSATION    OF   TOWN    SUPERINTENDENT    OF   COMMON   SCHOOLS. 

The  town  superintendent  is  entitled  to  one  dollar  and  twenty- 
five  cents  for  every  day  necessarily  spent  in  the  discharge  of 
his  duties,  to  be  audited  and  allowed  as  other  town  charges. 
(Id.) 

21.    FEES    OP    POUND   MASTER. 

The  pound  master  is  allowed  the  following  fees  for  his  ser- 
vices, to  wit :  for  taking  into  the  pound,  and  discharging  there 
from,  every  horse,  ass,  or  mule,  and  all  neat  cattle,  twelve  and 
a  half  cents  each  :  for  every  sheep  or  -lamb,  three  cents ;  and 
for  every  hog,  three  cents.  He  is  also  entitled  to  reasonable 
charges  for  feeding  such  beasts,  not  exceeding  six  cents  for  each 
beast  for  every  twenty-four  hours.     (1  R.  S.  408.     2  Id.  608.) 

22.    FEES   OF    COMMISSIONERS    CF    EXCISE. 

One  dollar  and  twenty  five  cents  are  allowed  to  each  com- 
missioner, for  one  day's  attendance  only  at  the  board  of  excise, 
to  be  paid  and  allowed  as  other  town  charges  ;  and  no  other 
or  greater  compensation  can  be  allowed,  whether  any  license  be 
granted  or  not,  or  whether  the  board  be  in  session  one  day  or 
more  than  one.     (1  R.  S.  852.) 

23.    FENCE    viewers'    FEES. 

A  fence  viewer  is  allowed  for  every  mile  of  travel  from  his 
home,  to  the  place  where  strays  are  kept,  six  cents  ;  and  twen- 
ty-five cents  for  a  certificate  of  the  charge  ;  to  be  paid  by  the 


596  OF  COUNTY  AND  TOWN  OFFICERS. 

owner  of  the  strays,  or  the  person  applying  for  the  certificate. 
(1  R.  S.401.) 

For  all  other  services  required  by  law,  fence  viewers  receive 
such  compensation  as  may  be  fixed  by  the  town  meetings  of 
theiB  respective  towns. 

26.  County  Charges. 

The  statute  provides  that  the  following  shall  be  deemed 
county  charges :     (1  R.  S.  439,  sec.  3.) 

1.  The  compensation  of  the  members  of  the  board  of  super- 
visors, of  their  clerk,  and  of  the  county  treasurer  ; 

2.  The  fees  of  the  district  attorney,  and  all  expenses  necessa- 
rily incurred  by  him  in  criminal  cases,  arising  within  the  coun- 
ty; 

3.  The  accounts  of  the  criers  of  the  several  courts  within  the 
county,  for  their  attendance  in  criminal  cases ; 

4.  The  compensation  of  sheriffs  for  the  commitment  and  dis- 
charge of  prisoners  on  criminal  process,  within  their  respective 
counties  ; 

5.  The  compensation  allowed  by  law  to  constables  for  attend- 
ing courts  of  record,  and  reasonable  compensation  to  constables 
and  other  officers  for  executing  process  on  persons  charged  with 
criminal  offences  ;  for  services  and  expenses  in  conveying  crim- 
inals to  jail  ;  for  the  service  of  subpoenas  issued  by  any  district 
attorney  ;  and  for  other  services  in  relation  to  criminal  proceed- 
ings, for  which  no  specific  compensation  is  prescribed  by  law  ; 

6.  The  expenses  necessarily  incurred  in  the  support  of  per- 
sons charged  with,  or  convicted  of  crimes,  and  committed  therefor 
to  the  several  jails  of  the  county  ; 

7.  The  sums  required  by  law  to  be  paid  to  prosecutors  and 
witnesses  in  criminal  cases  ; 

8.  The  accounts  of  the  coioners  of  the  county,  for  such  ser- 
vices as  are  not  chargeable  to  the  persons  employing  them  ; 

9.  The  moneys  necessarily  expended  by  any  county  officer, 
in  executing  the  duties  of  his  oflice,  in  cases  in  which  no  speci- 
fic compensation,  for  such  services  is  provided  by  law  ; 

10.  The  accounts  of  the  county  clerks  for  services  and  ex- 
penses incurred  ; 

11.  All  charges  and  accounts  for  services  rendered  by  any 
Justice  of  the  I'cacc,  under  the  laws  for  the  relief  and  settlement 


OF  COUNTY  AND  TOWN  OFFICERS.  597 

of  the  poor  of  his  county,  and  for  services  in  the  examination  of 
felons,  not  otherwise  provided  for  by  law  : 

12.  The  sums  necessarily  expended  in  each  county,  in  the 
support  of  county  poor  houses,  and  of  indigent  persons  whose 
supjDort  is  chargeable  to  the  county  ; 

13.  The  sums  required  to  pay  the  bounties  allowed  by  law 
for  the  destruction  of  wolves  and  other  noxious  animals,  and 
chargeable  to  the  county  ; 

14.  The  sums  necessarily  expended  in  repairing  the  court 
houses  and  jails  of  the  respective  counties  ; 

15.  The  contingent  expenses  necessarily  incurred,  for  the  use 
and  benefit  of  a  county  ; 

16.  Every  other  sum  directed  by  law  to  be  raised  for  any 
county  purpose,  under  the  direction  of  a  board  of  supervisors  ; 

17.  Accounts  of  sheriffs  for  paying  the  fees  of  clerks  of  coun- 
ties, for  drawing  juries,  for  attending  the  drawing  of  grand  juries, 
and  for  summoning  constables  to  attend  courts. 

Accounts  for  county  charges  of  every  description,  must  be 
presented  to  the  board  of  supervisors  of  the  county,  to  be  audited 
by  them.     (1.  R.  S.  440,  sec.  4.) 

All  town  and  county  officers,  and  all  other  persons,  who  may 
present  to  the  board  of  supervisors  accounts  for  their  services,  to 
be  audited  and  allowed,  must,  before  any  such  account  or  claim, 
can  be  passed  upon  or  allowed,  exhibit  a  just  and  true  statement, 
in  writing,  of  the  nature  of  the  service  performed  by  them.  (1 
R.  S.  439,  sec.  1.) 

In  all  cases  in  which  a  specific  compensation  for  any  service, 
is  not  provided  by  law,  the  officer  or  person  presenting  an  ac- 
count therefor,  must  also  exhibit,  in  writing,  a  just  and  true 
statement  of  the  time,  actually  and  necessarily  devoted  to  the 
performance  of  such  services.     (Id.  sec.  2.) 

27.   Town  Charges. 

The  statute  declares  that  the  following  shall  be  deemed  town 
charges  :     (1  R.  S.  410,  sec.  2.) 

1.  The  compensation  of  town  officers  for  services  rendered  for 
their  respective  towns  ; 

2.  The  contingent  expenses  necessarily  incurred  for  the  use 
and  benefit  ot  the  town. 


598  OF  COUNTY  AND  TOWN  OFFICERS. 

3.  The  moneys  authorized  to  be  raised  by  the  vote  of  the  town 
meeting,  for  any  town  purpose  ; 

4.  Every  sum  directed  by  law  to  be  raised  for  any  town  pur- 
pose. 

Accounts  for  compensation  of  town  officers,  (except  for 
moneys  received  and  disbursed,  which  are  to  be  settled  by  the 
board  of  town  auditors,)  are  to  be  presented  to  the  board  of  su- 
pervisors of  the  county.     (1  R.  S.  410,  sec.  3.) 

The  moneys  necessary  to  defray  the  town  charges  of  each 
town,  are  to  be  levied  on  the  taxable  property  in  the  town.  (Id, 
sec.  4.) 


CHAPTER    XXI. 

OF    TOWNS    AND    TOWN    MEETINGS. 

I  SHALL  treat  the  subjects  of  this  chapter  under  the  following 
heads : — 

1.  Tovms. 

2.  Town  Meetings. 

3.  Mode  of  Conducting  Town  Meetings. 

1.   Towns. 

Each  town,  as  a  body  corporate,  has  capacity  to  sue  and  be 
sued  ;  to  purchase  and  hold  lands  within  its  own  limits,  and  for 
the  use  of  its  inhabitants,  subject  to  the  power  of  the  legislature 
over  such  limits  ;  to  make  such  contracts,  and  to  purchase  and 
hold  such  personal  property  as  may  be  necessary  to  the  exer- 
cise of  its  corporate  or  administrative  powers  ;  and  to  make 
such  orders  for  the  disposition,  regulation  or  use  of  its  corporate 
property,  as  may  be  deemed  conducive  to  the  interests  of  its 
inhabitants.     (1  R.  S.  384,  385,  sec.  1.) 

The  statute  declares  that  no  town  shall  possess  or  exercise 
any  corporate  powers,  except  those  enumerated  above,  unless 
specially  given  by  law,  or  unless  necessary  to  the  exercise  of  the 
powers  so  enumerated  or  given.     (Sec.  2.) 

All  acts  or  proceedings  by  or  against  a  town  in  its  corporate 
capacity,  must  be  in  the  name  of  such  town  ;  but  every  con- 
veyance of  lands  within  the  limits  of  such  town,  made  in  any 
manner  for  the  use  or  benefit  of  its  inhabitants,  will  have  the 
same  effect  as  if  made  to  the  town  by  name.     (Sec.  3.) 

When  a  town,  seized  of  lands,  is  divided  into  two  or  more,  or 
when  its  limits  are  altered,  the  supervisors  and  overseers  of  the 
poor  in  the  towns  interested  have  power  to  make  such  agree- 
ments concerning  the  disposition  of  such  lands,  and  the  appor- 
tionment of  the  proceeds,  as  may  be  equitable.  If  they  do  not 
so  agree,  within  six  months  after  such  alteration  or  division,  the 
supervisors  and  overseers  may  sell  the  portion  of  such  lands 
which  lies  in  their  own  towns,  and  apportion  the  proceeds  among 


600  OF  TOWNS  AND  TOWN  MEETINGS. 

the  towns  interested,  according  to  the  taxable  property  in  each 
as  it  existed  immediately  before  such  division  or  alteration. 
Debts  owing  by  a  town  so  divided  or  altered,  must  be  appor- 
tioned in  the  same  manner  as  the  personal  property  of  such 
town  ;  and  each  town  must  thereafter  be  charged  with  its  share 
of  such  debts,  according  to  such  apportionment.  If  the  town  is 
possessed  of  money,  rights  or  credits,  or  other  personal  estate, 
they  are  to  be  apportioned  in  the  same  manner.  Whenever  a 
meeting  is  necessary  for  the  foregoing  purposes,  it  may  be  called 
by  the  supervisor  of  either  of  the  towns  interested,  on  giving 
three  days  notice,  stating  the  time  and  place  Lhereof.  (1  R.  S. 
385,  386.) 

No  town  can  be  divided  or  altered  in  its  bounds,  nor  can  any 
new  town  be  erected,  without  an  application  to  the  legislature 
by  the  inhabitants  of  the  town  so  to  be  divided  or  altered,  or  of 
the  several  towns  out  of  which  the  new  town  is  to  be  erected, 
or  some  of  them  ;  and  notice  in  writing  of  such  intended  appli- 
cation, subscribed  by  at  least  five  persons  resident  and  freehold- 
ers in  such  town  or  towns,  must  be  affixed  on  the  outer  door  of 
the  house  where  the  next  town  meeting  is  to  be  held  in  each  of 
the  towns  to  be  affected  thereby,  at  least  ten  days  previous  to 
the  town  meeting.  A  copy  of  such  notice  must  also  be  read  at 
the  town  meeting  of  every  town  to  be  affected  thereby,  to  the 
electors  there  assembled,  by  the  clerk  of  the  town,  immediately 
before  proceeding  to  the  election  of  town  officers.  The  appli- 
cants must  procure  an  accurate  survey  and  map  of  the  territory 
described  in  such  application,  which,  upon  being  verified  by  the 
oath  of  the  surveyor  making  it,  is  to  be  laid  before  the  legisla- 
ture ;  and  if  any  law  is  passed  pursuant  to  such  application,  it 
is  to  be  filed  in  the  office  of  the  surveyor-general.     (1  R.  S.  82.) 

The  wards  in  the  cities  correspond,  in  most  respects,  to  the 
several  towns  in  the  counties. 

2.    Town  Meetings. 

The  statute  directs  that  tlic  citizens  of  the  several  towns  in 
the  state  quuUfied  by  the  constitution  to  vote  for  elective  offi- 
cers, shall  annually  assemble  and  hold  town  meetings  in  their 
respective  towns,  at  such  place  in  each  town  as  the  electors 
thereof,  at  their  annual  town  meeting,  shall  from  time  to  time 
appoint.  The  town  meetings  of  the  several  towns  nnist  be  held 
on  some  day  between  tlic  first  day  of  February  and  the  first 


OF  TOWNS  AND  TOWN  MEETINGS.  601 

day  of  May  in  each  year,  to  be  appointed  from  time  to  time  by 
the  boards  of  supervisors  of  the  several  counties,  by  resolution, 
so  that  the  town  meetings  of  every  town  in  the  county  shall  be 
held  on  the  same  day — each  board  of  supervisors  to  fix  the  time 
for  their  respective  counties,  at  their  pleasure,  within  the  period 
aforesaid;  which  resolution,  so  fixing  the  time  for  said  town 
meetings,  when  adopted,  the  said  boards  must  cause  to  be  duly 
published  ;  and  the  day  so  appointed  must  remain  the  day  es- 
tablished for  said  town  meetings,  for  at  least  three  successive 
years,  and  until  changed  by  a  resolution  of  said  boards.  (1  R. 
S.  387,  sec.  2.) 

Whenever,  from  any  cause,  the  time  of  holding  the  annual 
town  meetings  in  any  town  is  not  fixed  by  the  inhabitants  in 
the  manner  required  by  law,  the  next  annual  town  meeting  in 
such  town  must  be  held  on  the  same  day,  of  the  same  week,  of 
the  same  month,  on  which  the  last  annual  town  meeting  of  such 
town  was  held  ;  and  if  no  place  has  been  fixed  for  such  meet- 
ing, it  must  be  held  at  the  place  of  the  last  annual  town  meet- 
ing.    (Sec.  3.) 

There  are  chosen,  at  the  annual  town  meeting  in  every  town, 
the  following  officers,  vTl.  :  one  supervisor,  one  town  clerk,  one 
Justice  of  the  Peace,  and  more,  if  there  be  any  vacancies  ;  not 
less  than  three,  nor  more  than  five  assessors,  one  collector,  two 
overseers  of  the  poor,  three  commissioners  of  highways,  one 
town  superintendent  of  common  schools  ;  not  more  than  five 
constables,  one  town  sealer  of  weights  and  measures,  as  many 
overseers  of  highways  as  there  are  road  districts  in  the  town, 
and  as  many  pound  masters  as  the  electors  may  determine. 
(Sec.  4.) 

The  electors  have  power,  at  their  annual  town  meet- 
ing, to  determine  what  number  of  assessors,  constables,  and 
pound  masters,  shall  be  chosen  for  the  ensuing  year  ;  to  direct 
such  sum  to  be  raised  in  the  town  for  the  support  of  common 
schools  as  they  deem  proper,  not  exceeding  the  sum  required  by 
law  to  be  raised  for  that  purpose ;  to  direct  the  institution  or  de- 
fence of  suits  in  which  the  town  is  a  party,  and  the  sum  of  mo- 
ney to  be  raised  for  that  purpose  ;  to  give  general  directions  for 
the  exercise  of  their  corporate  powers  ;  to  make  provision  and 
allow  rewards  for  the  destruction  of  noxious  weeds  ;  to  establish 
and  maintain  pounds  in  convenient  places  in  the  town ;  to  fix 
the   compensation  of  fence  viewers,  town  superintendents  of 


602  OF  TOWNS  AND  TOWN  MEETINGS. 

common  schools,  and  of  the  collector  of  the  town ;  but  the  law 
provides  that  the  collector  shall  not  receive  more  than  five,  nor 
less  than  three  per  cent,  on  the  amount  collected  by  him ;  to 
make  rules  and  regulations  in  relation  to  fences,  and  to  the  times  . 
when  cattle  may  be  permitted  to  go  at  large  on  the  highways ; 
for  impounding  animals,  &c. ;  to  impose  penalties  for  the  viola- 
tion of  any  town  ordinance,  except  those  relating  to  keeping  and 
maintaining  fences,  not  to  exceed  twelve  dollars  and  fifty  cents 
for  each  offence ;  to  authorize,  by  vote,  an  additional  sum  not 
exceeding  two  hundred  and  fifty  dollars,  to  be  raised  for  the 
improvement  of  roads  and  bridges  in  their  town,  when,  in  the 
opinion  of  the  commissioners  of  highways,  the  sum  of  two  hun- 
dred and  fifty  dollars  allowed  by  law  is  insufficient  for  that  pur- 
pose ;  and  in  those  counties  where  the  towns  are  bound  to  sup- 
port their  own  poor,  to  direct  such  sum  to  be  raised  therefor  as 
they  may  deem  necessary — which,  when  collected,  must,  in  the 
counties  having  a  county  poor  house,  or  other  place  for  the  re- 
ception of  the  poor,  be  paid  to  the  county  treasurer,  and  be 
placed  by  him  to  the  credit  of  the  town  ;  in  the  other  counties,  it 
is  to  be  paid  to  the  overseers  of  the  poor.     (1  R.  S.  387,  38S.) 

If  any  person  elected  to  the  office  of  supervisor,  assessor,  com- 
missioner of  highways,  or  overseer  of  the  poor,  refuse  to  serve, 
die,  resign,  remove  out  of  the  town,  or  become  incapable  of  serv- 
ing, it  is  the  duty  of  the  town  clerk,  within  eight  days  after  the 
happening  of  such  vacancy,  to  call  a  special  town  meeting  for 
the  piu-pose  of  supplying  the  same.  A  special  town  meeting 
may  also  be  called  whenever  twelve  or  more  persons  eligible  to 
the  office  of  supervisor,  shall,  by  written  application  to  the  town 
clerk,  signed  by  them,  require  the  same,  for  the  purpose  of  rais- 
ing money  for  the  support  of  the  common  schools,  or  of  the 
poor,  when  it  has  been  neglected  at  the  annual  town  meeting ; 
or  for  the  purpose  of  raising  money  to  carry  on  suits  to  which 
the  town  is  a  party.     (Id.  390,  sec.  15.) 

No  previous  notice  need  be  given  of  the  annual  town  meeting. 
But  the  town  clerk  is  required,  at  least  eight  days  before  the 
holding  of  any  special  town  meeting,  to  cause  notices  thereof, 
imder  his  hand,  to  be  posted  at  four  or  more  of  the  most  public 
places  in  the  town  ;  which  notices  must  specify  the  time,  place, 
and  purposes  of  such  meeting.     (Sec.  16.) 

Every  ord(;r  or  dircrtion,  mid  all  rules  and  regulations,  made 
by  any  town  meeting,  remain  in  force  until  the  same  are  altered 


OF  TOWNS  AND  TOWN    MEETINGS.  603 

or  repealed  at  some  subsequent  town  meeting.     (1  R.  S.  390, 
sec.  17.) 

Whenever  a  town  meeting  is  held  in  any  town,  no  civil  pro- 
cess can  be  served  in  such  town  on  any  elector  entitled  to  vote 
therein  on  any  day  during  which  such  town  meeting  is  held. 
(iSec.  18.) 

3.  Mode  of  Conducting  Town  Meetings. 

It  is  the  duty  of  the  Justices  of  the  Peace  of  each  town  to 
attend  every  town  meeting  held  therein ;  and  such  of  them  as 
are  present  must  preside  at  such  meeting,  and  see  that  the  same 
is  orderly  and  regularly  conducted.  The  officers  so  presiding 
have  the  like  authority  to  preserve  order,  to  enforce  obedience, 
and  to  commit,  for  disorderly  conduct,  as  is  possessed  by  the 
board  of  inspectors,  at  a  general  election.  If  there  is  no  Justice 
of  the  Peace  present  at  the  meeting,  then  such  person  as  may 
be  chosen  by  the  electors  present  must  preside,  and  will  possess 
the  like  powers  as  the  Justices.  The  town  clerk  last  before 
elected  or  appointed,  must  be  the  clerk  of  the  town  meeting,  and 
keep  faithful  minutes  of  its  proceedings,  in  which  he  must  enter 
at  length  every  order  or  direction,  and  all  rules  and  regulations 
made  by  such  meeting.  If  the  town  clerk  is  absent,  such  per- 
son as  may  be  chosen  for  that  purpose  by  the  electors  present 
must  act  as  clerk  of  the  meeting.  The  meeting  is  to  be  kept 
open  only  between  the  rising  and  setting  of  the  sun ;  and,  if 
necessary,  it  may  be  held  two  successive  days,  but  no  longer. 
(1  R.  S.  390,  391.) 

All  questions  upon  motions  made  at  town  meetings  are  deter- 
mined by  the  voice  of  a  majority  of  the  electors  voting,  the  re- 
sult being  ascertained  and  declared  by  the  presiding  officer. 
When  the  votes  are  by  ballot,  the  names  of  all  officers  voted  for 
must  be  on  one  ballot,  so  folded  as  to  conceal  the  contents,  which 
must  be  delivered  to  the  presiding  officer,  the  clerk  of  the  meet- 
ing keeping  a  poll  list  on  which  to  enter  the  name  of  every  per- 
son voting.  Proclamations  must  be  made  of  the  opening  and 
closing  of  the  poll,  and  also  of  each  adjournment,  until  the  elec- 
tion is  ended.     (1  R.  S.  391.) 

At  the  close  of  the  meeting,  the  presiding  officers  must  pro- 
ceed publicly  to  canvass  the  votes — which  canvass,  when  com- 
menced, must  be  continued,  without  adjournment  or  interrup- 
tion, until  the  same  is  completed.     The  canvassers  may,  how 


604  OF  TOWNS  AND  TOWN  MEETINGS. 

ever,  determine  whether  the  canvass  of  the  votes  shall  then  be 
had,  or  postponed  until  the  next  day ;  if  they  determine  that 
the  canvass  shall  then  be  commenced,  the  same  may  be  con- 
tinued after  sun  down  ;  but  it  must  be  had  publicly  at  the  place 
where  the  meeting  was  held,  and  the  result  must  be  read  by  the 
clerk  to  the  persons  there  assembled  ;  and  such  reading  will  be 
held  notice  of  the  election  to  all  persons  whose  names  are  on 
the  poll  list  as  voters.  Before  the  ballots  are  opened,  they  must 
be  counted  and  compared  with  the  poll  list.  (Id.  393.)  The 
canvass  being  completed,  a  statement  of  the  result  must  be  en- 
tered at  length  by  the  clerk  of  the  meeting  in  the  minute  of  its 
proceedings.     (Id.) 

The  clerk  of  every  town  meeting  is  required,  within  ten  days 
thereafter,  to  transmit  to  each  person  elected  to  any  town  office, 
whose  name  shall  not  have  been  entered  on  the  poll  list  as  a 
voter,  a  notice  of  his  election  ;  and  he  must  also  transmit  to  the 
county  clerk  the  result  of  every  town  meeting  at  which  a  Jus- 
tice of  the  Peace  is  elected,  within  ten  days  thereafter.     (Id.) 


CHAPTER  XXII. 


OF    SCHOOL    DISTRICTS. 


I  SHALL  treat  the  subjects  of  tliis  chapter  under  the  following 
heads : 

1.  Of  the  Formation  aful  Alteration  of  School  Districts. 

2.  Of  the  Powers  of  /School  District  Inhabitants,  and  of  the 

Choice  Duties  and  Poiuers  of  School  District  Officers. 

3.  The  Duty  of  Trustees  of  School  Districts. 

4.  The  Assessment  and  Collection  of  School  District   Taxes. 

5.  Of  the  Annual  Reports  of  Trustees,  their  Duties  and  Lia- 

hilities. 

6.  School  District  Libraries. 

7.  Miscellaneous  Provisions  connected  with  the  foregoing 

subjects. 

1 .   Of  the  Formation  and  Alteration  of  School  Districts. 

In  the  erection  or  alteration  of  a  school  district,  the  trustees  of 
the  district  may  apply  to  the  supervisor  and  the  town  clerk,  to  be 
associated  with  the  town  superintendent ;  and  their  action  will 
be  final,  unless  duly  appealed  from.  (Laws,  1847,  ch.  485, 
sec.  43.) 

The  compensation  of  the  supervisor  and  town  clerk,  when 
thus  associated,  will  be  the  same  as  that  of  the  town  superin- 
tendent.    (Id.) 

Whenever  it  becomes  necessary  or  convenient,  to  form  a  dis- 
trict out  of  two  or  more  adjoining  towns,  the  town  superinten- 
dent of  such  adjoining  towns,  or  the  major  part  of  them,  may 
form,  regulate  and  alter  such  district.     (Sec.  44.) 

No  alteration  of  any  school  district  made  without  the  consent 
of  its  trustees,  can  take  effect  ?mtil  three  months  after  notice,  in 
writing,  given  by  the  town  superintendent  to  some  one  or  more 
of  the  trustees  ;  nor  can  any  alteration  or  regulation  of  an  organ- 
ized school  district  be  made  to  take  effect  between  the  first  day 
of  December  in  any  one  year,  and  the  first  day  of  May  follow- 
ing.    (Sec.  45.) 


606  OF  SCHOOL  DISTRICTS. 

If  the  town  superintendent  in  any  town,  requires,  by  notice  in 
writing  the  attendance  of  the  town  superintendents  of  any  other 
town  or  towns,  at  a  joint  meeting  for  the  purpose  of  aUering  a 
school  district  formed  from  their  respective  towns,  and  a  major 
part  of  the  town  superintendents  notified,  refuse  or  neglect  to  at- 
tend, the  town  superintendents  attending,  by  a  majority  of  votes 
may  call  a  special  district  meeting  of  the  district  for  the  purpose 
of  deciding  on  the.  proposed  alteration  ;  and  the  decision  of  the 
meeting  will  be  as  valid  as  if  made  by  the  town  superintendents 
of  all  the  towns  interested.     It  can,  however,  extend  no  further 
than  to  dissolve  the  district  formed  from  such  towns.     (Sec.  46.) 
When  two  or  more  districts  are  consolidated  into   one,  the 
new  district  succeeds  to  all  the  rights  of  property  possessed  by 
the  districts  of  which  it  is  composed ;  and  when  a  district  is  an- 
nulled, and  portions  of  it  are  annexed  to  ether  districts,  the  pro- 
perty of  the  district  annulled  is  to  be  sold  by  the  town  superin- 
tendent of  the  town    in   which  the  school  house  is  located,  at 
public  auction,  to  the  highest  bidder,  after  at  least  five  days  pub- 
lic notice  posted  in  three  or  more  public  places  in  the  town,  one 
of  which  must  be  within  the  annulled  district.     The  proceeds 
on  the  sale  must  be  first  applied  so  far  as  requisite,  to  the  pay- 
ment of  any  just  debts  due  from  the  annulled  district ;  and  the 
residue  is  to  be  apportioned  among  the  taxable  inhabitants  of 
the  district  annulled,  in  the  ratio  of  their  several    assessments 
upon  the  last  corrected  assessment  roll  of  the  town  or  towns, 
within  which  the  district  is  located.     (Laws  1849,  ch.  382.) 

When  there  are  any  moneys  in  the  hands  of  the  ofiicers  of  a 
district  that  has  been  annulled,  or  belonging  to  such  district,  the 
town  superintendent  of  the  town  may  demand,  sue  for,  and  re- 
cover the  same,  in  his  name  of  office,  and  he  is  required  to  ap- 
portion the  same  equitably  between  the  districts  to  which  the 
several  portions  of  the  annulled  district  has  been  annexed,  to  be 
held  and  enjoyed  as  district  property.  (Laws  1847,  ch.  480,  sec. 
52.) 

Whenever  a  school  district  is  dissolved,  by  consolidation,  or 
otherwise,  it  is  the  duty  of  the  trustees  of  the  district  to  make 
out  all  the  necessary  rate  bills  and  tax  lists,  and  issue  their 
warrants  according  to  law,  for  the  collection  of  all  such  sums  of 
money  as  are  necessary  to  discharge  all  legal  liabiUtics  of  the 
district  so  dissolved  or  consolidated,  and  to  call  special  meetings 
of  the  legal  voters  of  the  district  if  it  is  necessary  ;  the  money 


OF  SCHOOL  DISTRICTS.  60  7 

to  discharge  such  demands  is  to  be  raised  by  tax  and  the 
collector  to  whom  any  such  rate  bill  or  tax  list  and  warrant,  are 
delivered  for  collection,  has  power  to  execute  the  same  in  the 
same  manner,  and  with  the  like  authority  as  though  the  district 
had  not  been  dissolved  or  consolidated.     (Id.  sec.  53.) 

2.   Of  the  Powers  of  School  District  Inhabitants,  and  of  the 
Choice,  Duties,  and  Powers  of  School  District  Officers. 

Whenever  any  school  district  is  formed  in  any  town  it  is  the 
duty  of  the  town  superintendent  within  twenty  days  thereafter, 
to  prepare  a  notice  in  writing,  describing  the  district,  and  ap- 
pointing a  time  and  place  for  the  first  district  meeting,  and  to 
deliver  the  notice  to  a  taxable  inhabitant  of  the  district.  (Laws 
1847,  ch.  480,  sec.  54. 

It  is  the  duty  of  such  inhabitant  to  notify  every  other  inhabi- 
tant of  the  district,  qualified  to  vote  at  district  meetings,  by 
reading  the  notice  in  the  hearing  of  such  inhabitant,  or,  in  case 
of  his  absence  from  home,  by  leaving  a  copy,  or  of  so  much  of 
it  as  relates  to  the  time  and  place  of  the  meeting,  at  the  place  of 
his  abode,  at  least  six  days  before  the  time  of  the  meeting.  (Id. 
sec.  55.) 

In  case  the  notice  is  not  given,  or  the  inhabitants  of  a  district 
refuse  or  neglect  to  assemble  or  form  a  district  meeting  when 
notified  ;  or  in  case  any  district,  having  been  formed  and  orga- 
nized in  pursuance  of  the  notice  is  afterwards  dissolved,  so  that 
no  competent  authority  exists  therein  to  call  a  special  district 
meeting ;  the  notice  is  to  be  renewed  by  the  town  superinten- 
dent, and  served  in  the  manner  above  prescribed.     (Sec.  56.) 

Every  taxable  inhabitant  to  v/hom  a  notice  of  a  district  meet- 
ing has  been  properly  delivered  for  service,  who  refuses,  or  ne- 
glects to  serve  the  notice,  for  every  offence  forfeits  the  sum  of 
five  dollars.     (Sec.  57.) 

Whenever  any  district  meeting  is  called  in  the  foregoing  man- 
ner, it  is  the  duty  of  the  inhabitants  of  the  district,  qualified  to 
vote  at  district  meetings,  to  assemble  at  the  time  and  place 
mentioned  in  the  notice.     (Sec.  58.) 

Every  male  person  of  full  age,  residing  in  any  school  district, 
and  entitled  to  hold  lands  in  this  state,  who  owns  or  hires  real 
property  in  the  district  subject  to  taxation  for  school  purposes, 
and  every  resident  of  such  district,  authorized  to  vote  at  town 


608  OP  SCHOOL  DISTRICTS. 

meetings  of  the  town  in  which  such  district,  or  part  of  district, 
is  situated,  and  who  has  paid  any  rate  bill  for  teachers'  wages 
in  such  district,  within  one  year  preceding,  or  who  owns  any 
personal  property  liable  to  be  taxed  for  school  purposes  in  such 
district,  exceeding  fifty  dollars  in  value,  exclusive  of  such  as  is 
exempt  from  execution,  and  no  others,  will  be  entitled  to  vote 
at  any  school  district  meeting  held  in  such  district.     (Sec.  59.) 

If  any  person  offering  to  vote  at  any  school  district  meeting,  is 
challenged  as  unqualified  by  any  legal  voter  in  the  district,  the 
chairman  presiding  at  the  meeting,  must  require  the  person  so 
offering  to  make  the  following  declaration:  "  I  do  declare  and 
affirm,  that  I  am  an  actual  resident  of  this  school  district,  and 
that  T  am  qualified  to  vote  at  this  meeting."  Every  person 
making  the  foregoing  declaration,  is  to  be  permitted  to  vote  on 
all  questions  proposed  at  the  meetings;  and  if  any  person  re- 
fuses to  make  the  declaration,  his  vote  must  be  rejected.  (Sec. 
60.) 

It  is  provided,  that  every  person  who  shall  wilfully  make  a 
false  declaration  of  his  right  to  vote  at  a  district  meeting,  upon 
being  challenged,  will  be  guilty  of  a  misdemeanor,  punishable 
in  the  county  jail  for  a  term  not  exceeding  one  year,  nor  less 
than  six  months,  in  the  discretion  of  the  court;  and  any  person 
voting  at  any  school  district  meeting,  without  being  qualified, 
will,  on  conviction,  be  subject  to  a  fine  of  ten  dollars,  to  be 
sued  for  and  recovered  by  the  trustees  of  the  district,  for  its 
use,  and  with  costs  of  suit,  before  any  Justice  of  the  Peace. 
(Sec.  61.) 

The  inhabitants  entitled  to  vote,  when  lawfully  assembled  at 
any  district  meeting,  have  power,  by  a  majority  of  votes  of  those 
present  : 

1.  To  appoint  a  chairman  for  the  time  being  ; 

2.  To  adjourn,  from  time  to  time,  as  occasion  may  require  ; 

3.  To  choose  a  district  clerk,  three  trustees,  a  district  collec- 
tor, and  a  librarian,  at  their  first  meeting,  and  as  often  as  such 
offices,  or  either  of  them,  become  vacated  ; 

4.  To  designate  a  site  for  a  district  school  iiousc  ; 

5.  To  lay  such  tax  on  the  taxable  inhabitants  of  the  district, 
as  the  meeting  deems  suflicient  to  purchase  or  lease,  a  suitable 
site  for  a  school  house,  and  to  build,  hire,  or  purchase  such 
school  house,  and  to  ki'cp  in  repair  and  furnish  the  same,  with 
the  necessary  fuel  and  appendages  ; 


OF  SCHOOL  DISTRICTS.  C09 

6.  To  alter,  repeal,  and  modify  their  proceedings,  from  time 
to  time,  as  occasion  may  require  ; 

7.  To  vote  a  tax  for  the  purchase  of  a  book  for  the  purpose 
of  recording  the  proceedings  in  their  respective  districts  ; 

8.  With  the  consent  of  the  town  superintendent  of  the  town, 
to  designate  sites  for  two  or  more  school  houses  for  the  district, 
and  lay  a  tax  on  the  taxable  property  in  the  district,  to  purchase 
or  lease  such  sites,  and  to  hire,  build,  or  purchase  such  school 
houses,  and  to  keep  in  repair  and  furnish  the  same  with  neces- 
sary fuel  and  appendages,  and  may  also,  in  their  discretion,  lay 
a  tax,  not  exceeding  twenty  dollars  in  any  one  year,  to  purchase 
maps,  globes,  black  boards,  and  other  school  apparatus.  (Laws, 
1847,  ch.  480,  sec.  62.) 

The  trustees  chosen  at  the  first  legal  meeting  of  any  school 
district,  are  to  be  divided  by  lot  into  three  classes,  to  be  num- 
bered one,  two,  and  three.  The  term  of  office  of  the  first  class, 
is  one  year,  of  the  second,  two,  of  the  third,  three  ;  and  after- 
terwards,  one  trustee  is  to  be  annually  elected,  to  hold  his  office 
for  three  years,  and  until  a  successor  is  duly  elected  or  appoint- 
ed. In  case  of  a  vacancy  in  the  office  of  either  of  the  trustees, 
during  the  period  for  which  he,  or  they,  shall  have  been  respec- 
tively elected,  the  person  or  persons  chosen  or  appointed  to 
fill  Jlich  vacancy,  hold  the  ofiice  only  for  the  unexpired  term. 
(Id.  sec.  63.) 

Every  notice  of  a  district  meeting  called  in  pursuance  of  the 
foregoing  provisions,  must  state  the  purpose  for  which  the  meet- 
ing is  called.     (Id.  sec.  64.) 

In  each  school  district,  an  annual  meeting  is  to  be  held  at  the 
time  and  place  previously  appointed  ;  and  at  the  first  district 
meeting,  and  at  each  annual  meeting,  the  time  and  place  of 
holding  the  next  annual  meeting,  are  to  be  fixed.     (Sec.  65.) 

Whenever  the  time  for  holding  annual  meetings  in  a  district 
for  the  election  of  district  officers,  pass  without  such  election 
being  held,  a  special  meeting  is  to  be  notified  by  the  clerk  of  the 
district,  to  choose  such  officers ;  and  if  no  such  notice  be  given 
by  him  or  the  trustees  last  elected  or  appointed,  within  twenty 
days  after  such  time  shall  have  passed,  the  town  superintendent 
or  town  clerk,  may  order  any  inhabitant  of  the  district,  qualified 
to  vote  at  district  meetings,  to  notify  such  meeting,  in  the 
manner  provided  by  law,  in  case  of  the  formation  of  a  new  dis- 
trict ;  and  the  ofiicers  chosen  at  any  such  special  meeting,  hold 

39 


(510  OF  SCHOOL  DISTRICTS. 

their  office,  until  the  time  for  holding  the  next  annual  meeting. 
(Sec.  66.) 

When  the  clerk,  and  all  the  trustees  of  a  school  district,  have 
removed,  or  otherwise  vacated  their  office,  and  where  the  re- 
cords of  a  district  have  been  destroyed  or  lost,  or  where  the 
trustees  neglect  or  refuse  to  call  meetings  to  choose  trustees, 
the  superintendent  has  authority  to  order  such  meetings,  and 
the  same  are  to  be  notified  in  the  manner  provided  by  law,  in 
case  of  the  formation  of  new  districts.     (Sec.  67.) 

When,  in  consequence  of  the  loss  of  the  records  of  a  school 
district,  or  the  omission  to  designate  the  day  for  its  annual  meet- 
ing, there  is  none  fixed,  or  it  cannot  be  ascertained,  the  trustees 
of  such  district  may  appoint  a  day  for  holding  the  annual  meet- 
ing of  the  district.     (Sec.  68.) 

A  special  meeting  is  to  be  held  in  each  district,  whenever 
called  by  the  trustees.  The  proceedings  of  no  district  meeting, 
annual  or  special,  will  be  held  illegal  for  want  of  a  due  notice 
to  all  the  persons  qualified  to  vote  thereat,  unless  it  appears  that 
the  omission  to  give  such  notice,  was  wilful  and  fraudulent. 
(Sec.  69.) 

No  tax,  to  be  voted  by  a  district  meeting,  for  building,  hiring, 
or  purchasing  a  school  house,  can  exceed  the  sum  of  four  hun- 
dred dollars,  unless  the  town  superintendent  of  the  town  in 
which  the  school  house  is  to  be  situated,  certifies,  in  writing,  his 
opinion,  that  a  larger  sum  ought  to  be  raised,  and  specifies  the 
sum  ;  in  which  case,  a  sum,  not  exceeding  the  sum  so  specified, 
is  to  be  raised  ;  and,  in  districts  composed  of  parts  of  several 
towns,  the  certificates  of  the  major  part  of  the  superintendents 
of  the  towns,  will  be  necessary  for  such  purpose.     (Sec.  70.) 

Whenever  a  majority  of  all  the  taxable  inhabitants  of  any 
school  district,  to  be  ascertained  by  taking  and  recording  the 
ayes  and  noes  of  such  inhabitants  attending  at  any  annual, 
special,  or  adjourned  school  district  meeting,  legally  called  or 
hiild,  determine  that  a  proposed  sum  shall  be  raised  by  in- 
stalments; it  is  the  duty  of  tiie  trustees  of  the  district  to  cause 
the  same  to  be  levied,  raised,  and  collected,  in  equal  annual  in- 
staluH  nts,  in  tiic  same  maimer,  and  with  the  like  autiioriiy  that 
other  school  district  taxes  are  raised,  levied,  and  collected,  and 
to  make  out  their  tax  list  and  warrant  for  the  collection  of  such 
instalments  as  tlu^y  become  payal)le,  according  to  the  vote  of  the 
inhabitants  ;  but  the  i)aynient  or  collection  of  the  last  instalment 


OF  SCHOOL  DISTRICTS.  ^H 

cannot  be  extended  beyond  five  years,  from  the  time  such  vote 
was  taken  ;  and  no  vote,  to  levy  any  such  tax,  can  be  re-consi- 
dered, except  at  an  adjourned  general  or  special  meeting,  to  be 
held  within  thirty  days  thereafter,  and  the  same  majority  is 
required  for  re-consideration,  as  is  required  to  levy  the  tax. 
(Sec.  71.) 

In  every  case,  where  a  district  embraces  a  part  of  more  than 
one  town,  the  town  superintendents  of  the  towns  so  in  part  em- 
braced, upon  application  of  the  trustees  of  such  districts,  or  of 
those  persons  liable  to  pay  taxes  upon  real  property  therein, 
must  proceed  to  inquire  and  determine,  whether  the  valuation 
of  real  property  upon  the  several  assessment  rolls  of  said  towns, 
are  substantially  just,  as  compared  with  each  other,  so  far  as 
such  district  is  concerned  ;  and,  if  determined  not  to  be  so,  they 
are  to  determine  the  relative  proportion  of  taxes  that  ought  to  be 
assessed  upon  the  real  property  of  the  parts  of  such  districts,  so 
lying  in  diiferent  towns;  and  the  trustees  of  such  district,  are 
thereupon  to  assess  the  proportion  of  any  tax  thereafter  to  be 
raised  according  to  the  determination  of  the  superintendents, 
until  the  same  are  altered  by  the  superintendents,  upon  like  ap- 
plication, using  the  assessment  rolls  of  the  several  towns  to 
distribute  the  said  proportion  among  the  persons  liable  to  be  as- 
sessed for  the  same.  In  cases  where  two  superintendents  are 
unable  to  agree,  they  are  to  summon  a  superintendent  from  some 
adjoining  town,  who  must  unite  in  such  inquiry  and  determina- 
tion.    (Sec.  72.) 

Whenever  a  school  house  has  been  built  or  purchased  for  a 
district,  the  site  of  the  school  house  cannot  be  changed,  nor  the 
building  thereon  be  removed,  as  long  as  the  district  remains 
unaltered,  unless  by  the  consent,  in  writing,  of  the  town  super- 
intendents of  common  schools  of  the  town,  or  towns,  within 
which  such  district  is  situated,  stating  that,  in  their  opinion, 
such  removal  is  necessary;  nor  then,  unless  a  majority  of  all 
the  taxable  inhabitants  of  the  district,  to  be  ascertained  by  tak- 
ing and  recording  the  ayes  and  noes,  at  a  special  meeting 
called  for  that  purpose,  shall  be  in  favor  of  the  new  site.  (Sec. 
73.) 

Whenever  the  site  of  a  school  house  has  been  changed,  the 
inhabitants  of  the  district  entitled  to  vote,  lawfully  assembled 
at  any  district  meeting,  have  power,  by  a  majority  of  votes  of 
those  present,  to  direct  the  sale  of  the  former  site  or  lot,  and  the 


G12  OF  SCHOOL  DISTRICTS. 

buiklings  thereon,  and  appurtenances,  or  any  part  thereof,  at 
such  price,  and  upon  such  terms,  as  they  may  deem  most  ad- 
vautageous  to  the  district  ;  and  any  deed  duly  executed  by  the 
trustees  of  the  district,  or  a  majority  of  them,  in  pursuance  of 
such  direction,  will  be  valid  and  etfectual  to  pass  all  the  estate 
or. interest  of  the  school  district,  in  the  premises  intended  to  be 
conveyed  thereby,  to  the  grantee  named  in  such  deed  ;  and 
when  a  credit  is  directed  to  be  given  upon  such  sale,  for  the  consi- 
deration mouey,  or  any  part  thereof,  the  trustees  are  authorized 
to  take,  in  their  corporate  name,  such  security  by  bond  and  mort- 
oao-e,  or  otherwise,  for  the  payment  thereof,  as  they  shall  deem 
best ;  and  to  hold  the  same  as  a  corporation,  and  account  there- 
for to  their  successor  in  office,  and  to  the  district,  in  the  manner 
they  are  now  required  by  law  to  account  for  moneys  received  by 
them;  and  the  trustees  of  any  such  district,  for  the  time  being, 
may,  in  their  name  of  office,  sue  for  and  recover  the  moneys 
due  and  unpaid  upon  any  security  so  taken  by  them,  or  their 
predecessors  in  office,  with  interest  and  cost.     (Sec.  74.) 

All  moneys  arising  from  any  sale  made  in  pursuance  of  the 
foregoing,  are  to  be  appropriated  to  the  payment  of  the  expenses 
incurred  in  procuring  a  new  site,  and  removing  or  erecting  a 
school  house,  or  either  of  them,  so  far  as  the  application  may  be 
deemed  necessary.     (Sec.  75.) 

The  clerk,  trustees,  collector,  and  librarian  of  each  school  dis- 
trict, hold  their  respective  offices  until  the  annual  meeting  of  the 
district  next  following  the  time  of  their  appointment.  (Laws, 
1849,  ch.  382.) 

In  case  the  office  of  trustee  is  vacated,  by  the  death,  refusal 
to  serve,  removal  out  of  the  district,  or  incapacity  of  any  such 
officer,  and  the  vacancy  is  not  supplied  by  a  district  meeting, 
within  one  month  thereafter,  the  town  superintendent  of  the 
town  may  appoint  any  person  residing  in  the  district,  to  supply 
the  vacancy.     (Sec.  77.) 

In  case  of  a  vacancy  in  the  office  of  school  district  clerk,  col- 
lector, or  librarian,  by  reason  of  the  person  chosen  or  appointed 
refusing  to  servo,  the  vacancy  may  be  supplied  by  appointment, 
under  the  hands  of  tlic  trustees  of  the  district,  or  a  majority  of 
them,  and  the  persons  so  appointed  hold  their  rcsj)ectivc  offices 
uiiiil  the  next  .'ituiu.il  meetiiig  of  the  district,  and  until  others 
are  ehclcd  in  thrir  places.     (Sec.  78.) 

Every  person  duly  chosen  or  appointed  to  any  such  office, 


OF  SCHOOL  DISTRICTS,  613 

who,  without  sufficient  cause,  refuses  to  servo  therein,  forfeits 
the  sum  of  five  dollars  ;  and  every  person  so  chosen  or  appoint- 
ed, and  not  having  refused  to  accept,  who  neglects  to  perform 
the  duties  of  his  office,  forfeits  the  sum  of  ten  dollars.  (Sec. 
79.) 

Any  person  chosen  or  appointed  to  any  such  office,  may  re- 
sign the  same,  by  presenting  his  resignation  to  the  town  super- 
intendent of  the  town  where  such  officer  resides,  who  is  autho- 
rized, for  sufficient  cause  shown  to  him,  to  accept  the  same,  and 
the  acceptance  of  sucli  resignation  will  be  a  bar  to  a  recovery 
of  either  of  the  foregoing  penalties.  The  town  superintendent 
accepting  the  resignation,  is  required  to  give  notice  thereof  to 
the  clerk,  or  to  one  of  the  trustees  of  the  school  district  to  which 
the  officer  resigning  belongs.     (Sec.  80.) 

It  is  the  duty  of  the  clerk  of  each  school  district — 

1.  To  record  the  proceedings  of  his  district  in  a  book,  to  be 
provided  for  that  purpose  by  the  district,  and  to  enter  therein 
true  copies  of  all  reports  made  by  the  trustees  of  his  district,  to 
the  town  superintendent  ; 

2.  To  give  notice  of  the  time  and  place  for  special  district 
meetings,  when  they  are  called  by  the  trustees  of  the  district, 
to  each  inhabitant  of  the  district  liable  to  pay  taxes,  at  least 
five  days  before  the  meeting  is  held  ; 

3.  To  affix  a  notice,  in  writing,  of  the  time  and  place  for  any 
adjourned  district  meeting,  when  the  adjournment  is  for  a  long- 
er time  than  one  month,  in  at  least  four  of  the  most  public  places 
of  the  district,  at  least  five  days  before  the  time  appointed  for 
the  adjourned  meeting  ; 

4.  To  give  like  notice  of  every  annual  district  meeting; 

5.  To  keep  and  preserve  all  records,  books,  and  papers  be- 
longing to  his  office,  and  to  deliver  the  same  to  his  successor  in 
office  ;  and  in  case  of  his  neglect  or  refusal  so  to  do,  he  will  be 
subject  to  a  fine  not  exceeding  fifty  dollars. 

3.   Of  the  Duty  of  Trustees  of  ^School  Districts. 

It  is  the  duty  of  the  trustees  of  every  school  district,  and  they 
have  power;     (Laws,  1847.  ch.  480,  sec.  82.) 

1.  To  call  special  meetings  of  the  inhabitants  of  the  districts 
liable  to  pay  taxes  whenever  they  deem  it  necessary  and  proper; 

2.  To  give  notice  of  special,  annual,  and  adjourned  meetings, 


614  OF  SCHOOL  DISTRICTS. 

if  there  is  no  clerk  of  the  district,  or  he  is  absent  or  incapable  of 
acting; 

3.  To  make  out  a  tax  list  of  every  district  tax  voted  by  any 
such  meeting,  containing  the  names  of  all  the  taxable  inhabi- 
tants residing  in  the  district  at  the  time  of  making  out  the  list, 
and  the  amount  of  tax  payable  by  each  inhabitant,  set  oif  oppo- 
site to  his  name  ; 

4.  To  annex  to  such  tax  list  a  warrant,  directed  to  the  coUec- 
or  of  the  district,  for  the  collection  of  the  sums  in  such  list  men- 
tioned ; 

5.  To  purchase,  or  lease  a  site  for  the  district  school  house, 
as  designated  by  a  meeting  of  the  district,  and  to  build,  hire,  or 
purchase,  keep  in  repair,  and  furnish,  such  school  house,  with 
necessary  fuel  and  appendages  out  of  the  funds  collected  and 
paid  to  them  for  such  purposes  ; 

6.  To  have  the  custody  and  safe  keeping  of  the  district  school 
house  : 

7.  To  contract  with,  and  employ,  all  teachers  in  the  districts  ; 

8.  To  pay  the  wages  of  such  teachers  when  quahfied,by  giv- 
ing them  orders  on  the  town  superintendents  for  the  public  mo- 
ney belonging  to  their  district  so  far  as  such  moneys  are  suffi- 
cient for  that  purpose  ;  and  to  collect  the  residue  of  such  wages, 
from  all  persons  liable    therefor  ;     (Laws,  1849,  ch.  382.) 

9.  To  divide  the  public  moneys  received  by  them,  whenever 
authorized  by  a  vote  of  their  district,  into  not  exceeding  ten])or- 
tions  for  each  year ;  to  assign  and  apply  one  of  such  portions  to 
each  term  during  which  a  school  is  kept  in  the  district,  for  the 
payment  of  the  teachers'  wages  during  the  term  ;  and  to  collect 
the  residue  of  the  wages  not  paid,  by  the  proportion  of  public 
money  allotted  for  that  purpose,  from  the  person  liable  therefor  ; 

10.  To  exempt  from  the  payment  of  the  wages  of  teachers, 
either  in  part,  or  wholly,  such  indigent  persons  within  the  dis- 
trict as  they  think  proper,  in  any  one  quarter  or  term  to  be  a 
charge  upon  the  district ; 

11.  To  certify  such  exemptions  and  deliver  the  certificate 
thereof,  to  the  clerk  of  the  district,  to  be  kept  on  file  in  his  oflice  ; 

12.  ^J'o  ascertain,  by  examination  of  the  school  lists  kept  by 
the  teacher,  the  number  of  days  for  which  each  person  not  so 
exempted,  is  liable  to  pay  for  instruction,  and  the  amount  paya- 
ble by  each  person  ; 

13.  To  make  out  a  rate  bill,  containing  the  name  of  each  per- 


OF  SCHOOL  DISTRICTS.  615 

son  liable,  and  tlie  amount  for  which  he  is  liable  ;  and  to  annex 
to  it  a  warrant  for  its  collection  ; 

14.  To  deliver  the  rate  bill,  with  the  warrant  annexed,  after 
it  has  been  made  out  and  signed  by  them,  to  the  collector  of  the 
district,  who  is  required  to  execute  the  same  in  like  manner  with 
the  warrants  directed  by  the  trustees  to  the  collector  for  the  col- 
lection of  district  taxes,  and  the  collectors  to  whom  any  such  rate 
bill  and  warrant  are  delivered  for  collection,  possess  the  same 
power,  are  entitled  to  the  same  fees,  and  subject  to  the  same  re- 
strictions and  liabilities,  with  their  bail  and  sureties,  as  is  provid- 
ed in  proceedings  to  collect  school  district  taxes.  (Laws,  1849, 
ch.  382.) 

The  trustees,  after  the  rate  bill  and  warrant  have  been  made 
out,  and  signed,  must  cause  notice  thereof,  signed  by  them,  to 
be  posted  in  their  district,  as  directed  in  the  case  of  the  collec- 
tion of  district  taxes.  It  is  the  duty  of  the  trustees,  or  one  of 
them,  or  the  teacher  to  whom  the  moneys  in  the  rate  bill  are  pay- 
able, at  any  time  within  thirty  days  thereafter,  to  receive  pay- 
ment from  any  person  named  therein,  of  the  sum  due  from  such 
person.  The  same  proceedings  are  to  be  had  to  compel  and 
enforce  the  payment  of  the  sums  of  money  remaining  due  on 
the  rate  bill  after  the  expiration  of  the  thirty  days,  as  is  provided 
for  the  collection  of  district  taxes.  The  collector  to  whom  any 
such  rate  bill  and  warrant  are  delivered  for  collection,  possesses 
the  same  power,  is  entitled  to  the  same  fees,  and  subject  to  the 
same  restrictions,  and  liabilities  with  their  bail  and  sureties,  as 
is  provided  in  proceedings  to  collect  school  district  taxes.  (Laws 
1847,  ch.  480,  sec.  83.) 

Where,  by  reason  of  the  inability  to  collect  any  tax  or  rate 
bill,  there  is  a  deficiency  in  the  amount  raised,  the  inhabitants 
of  the  district,  in  district  meeting,  are  to  direct  the  raising  of  a 
sufficient  sum  to  supply  the  deficiency  by  tax,  or  it  is  to  be  col- 
lected by  rate  bill,  as  the  case  may  require.     (Id.  sec.  84.) 

4.   The  Assessment  and  Collection  of  School  District   Taxes. 

In  making  out  a  tax  list,  the  trustees  of  school  districts  are  to 
apportion  the  same,  on  all  the  taxable  inhabitants  of  the  district 
or  corporation  holding  property  therein,  according  to  the  valua- 
tions of  taxable  property  owned,  or  possessed  by  them,  at  the 
time  of  making  out  the  list,  within  the  district,  or  partly  within 


616  OF  SCHOOL  DISTRICTS. 

the  district,  and  partly  within  an  adjoining  district,  and  upon 
all  real  estate  lying  within  the  boundaries  of  such  district,  the 
owners  of  which  are  non-residents,  and  which  is  liable  to  taxa- 
tion for  town  or  county  purposes,  and  is  situated  within  three 
miles  of  the  site  of  the  school  house  in  the  district.  When,  how- 
ever, it  is  ascertained  that  the  proportion  of  any  tax  upon  any 
lot,  tract,  or  parcel,  not  occupied  by  any  inhabitant,  would  not 
amount  to  fifty  cents,  the  trustees  in  their  discretion  may  omit 
such  lot,  tract,  or  parcel,  from  the  tax  list.  (Laws,  1847,  ch. 
480,  sec.  85.) 

Any  person  working  land,  under  a  contract  for  a  share  of  the 
produce  of  the  land,  will  be  deemed  the  possessor  so  far  as  to 
render  him  liable  to  taxation,  in  the  district  where  the  land  is  sit- 
uated.    (Id.  sec.  86.) 

Every  person  owning  or  holding  any  real  property,  within 
any  school  district,  who  improves  and  occupies  the  same,  by  his 
agent  or  servant,  in  respect  to  the  liability  of  such  property  to 
taxation  is  to  be  considered  a  taxable  inhabitant  of  the  district, 
in  the  same  manner  as  if  he  actually  resided  therein.     (Sec.  87.) 

Where  any  district  tax,  for  the  purpose  of  purchasing  a  site 
for  a  school  house,  or  for  purchasing  or  building,  keeping  in  re- 
pair, or  furnishing  such  school  house  with  necessary  fuel  and 
appendages,  is  lawfully  assessed  and  paid  by  any  person,  on  ac- 
count of  any  real  property  whereof  he  is  only  tenant  at  will, 
or  for  three  years,  or  for  a  less  period  of  time,  such  tenant  may 
charge  the  owner  of  such  real  estate  with  the  amount  of  the  tax 
so  paid  by  him,  unless  some  agreement  to  the  contrary  has  been 
made  by  such  tenant.     (Sec.  88.) 

When  any  real  estate,  within  a  district^  so  liable  to  such  tax- 
ation is  not  occupied  and  improved  by  the  owner,  his  servant  or 
agent,  and  is  not  possessed  by  any  tenant,  the  trustees  of  any 
district  at  the  time  of  making  out  any  tax  list,  or  statement  by 
which  any  tax  is  imposed  thereon,  are  required  to  make  and  in- 
sert in  such  tax  list,  a  statement  and  description  of  every  such 
lot,  piece  or  parcel  of  land,  so  owned  by  non-residents,  in  the 
same  manner  as  required  by  law,  from  town  assessors  in  making 
out  the  assessment  rolls  of  their  towns.  If  any  such  lot  is  known 
to  belong  to  an  incorporated  company  liable  to  taxation  in  such 
district,  the  name  of  such  cnnipany  must  be  specified,  and  the 
value  of  such  lot  or  piece  of  land  nmst  be  set  down  opposite  to 
5;uch  description,  which  vahie  nmst  be  the  same  that  wa ;  affix- 
ed to  such  lot  or  jjiece  of  land  in  the  hist  assessment  roll  of  the 


OF  SCHOOL  DISTRICTS.  617 

town  ;  and  if  the  same  was  not  separately  valued  in  such  roll, 
it  must  be  valued  in  proportion  to  the  valuation  which  was 
affixed  in  the  assessment  roll  to  the  whole  tract,  of  which,  such 
lot  or  piece  is  a  part.     (Sec.  89^.) 

If  any  tax  on  the  real  estate  of  a  non-resident  mentioned  in 
the  tax  list  delivered  to  the  collector,  is  unpaid  at  the  time  he  is 
required  by  law  to  return  his  warrant,  he  must  deliver  to  the 
trustees  of  the  district,  an  account  of  the  taxes  so  remaining  due, 
containing  a  description  of  the  lots  and  pieces  of  land,  upon 
which  any  taxes  were  imposed,  as  the  same  were  stated  in  his 
tax  list,  together  with  the  amount  of  the  tax  assessed  on  each, 
and  upon  making  oath  before  any  Justice  of  the  Peace,  or  Judge 
of  any  court  of  record  that  the  taxes  mentioned  in  such  account 
remained  unpaid,  and  that  after  diligent  efforts  he  has  been  un- 
ble  to  collect  the  same,  he  must  be  credited  by  the  trustees  with 
the  amount  thereof.     (Sec.  90.) 

Whenever  the  trustees  of  any  school  district  receive  such  an 
account  of  unpaid  taxes  from  any  collector,  they  are  required  to 
compare  the  same  with  the  original  tax  list,  and  if  found  to  be  a 
true  transcript,  they  must  add  to  such  account  a  certificate  to 
the  effect  that  they  have  compared  the  same  with  the  original 
tax  list,  and  found  it  to  be  correct,, and  immediately  transmit 
such  account,  with  the  affidavit  of  the  collector,  and  their  certi- 
ficate, to  the  treasurer  of  the  county.     (Sec.  91.) 

The  county  treasurer  is  required  to  pay  to  the  trustees  of  the 
school  district  in  which  the  taxes  were  imposed,  the  amount  re- 
turned as  unpaid,  out  of  any  moneys  in  the  county  treasury, 
raised  for  contingent  expenses.     (Sec.  92.) 

The  account,  affidavit,  and  certificate,  are  to  be  laid  by  the 
county  treasurer  before  the  board  of  supervisors  of  the  co  :nty, 
who  must  cause  the  amount  of  the  unpaid  taxes,  with  seven  per 
cent,  of  the  amount  in  addition  thereto,  to  be  levied  upon  the 
lands  of  non-residents,  on  which  the  same  were  imposed,  and  if 
imposed  upon  the  lands  of  any  incorporated  company,  then  upon 
such  company,  in  the  same  manner  that  the  contingent  charges 
of  the  county  are  directed  to  be  levied  and  collected;  and  when 
collected,  the  same  are  to  be  returned  to  the  county  treasury  to 
reimburse  the  amount  so  advanced,  with  the  expense  of  collec- 
tion.    (Sec.  93.) 

Any  person  whose  lands  are  included  in  any  such  account, 
may  pay  the  tax  assessed  thereon  to  the  county  treasurer,  at 


618  OF  SCHOOL  DISTRICTS. 

any  time  before  the  board  of  supervisors  shall  have  directed  the 
same  to  be  levied.     (Sec.  94.) 

The  same  proceedings,  in  all  respects,  are  to  be  had  for  the 
collection  of  the  amount  so  directed  to  be  raised,  by  the  board 
of  supervisors,  as  are  provided  by  law  in  relation  to  county  tax- 
es ;  and  upon  a  similar  account,  as  in  the  case  of  county  taxes, 
of  the  arrears  thereof  uncollected,  being  transmitted  by  the 
county  treasurer  to  the  comptroller,  the  same  are  to  be  paid  on 
his  warrant;  to  the  treasurer  of  the  county  advancing  the  same. 
The  amount  so  assumed  by  the  state,  is  to  be  collected  for  its 
benefit,  in  the  manner  prescribed  by  law  in  respect  to  the  ar- 
rears of  county  taxes  upon  the  lands  of  non-residents  ;  or  if  any 
part  of  the  amount  so  assumed,  consisted  of  a  tax  upon  any  in- 
corporated company,  the  same  proceedings  may  be  had  for  its 
collection  as  provided  by  law  in  respect  to  the  county  taxes  as- 
sessed upon  such  company.     (Sec.  95.) 

The  valuations  of  taxable  property  are  to  be  ascertained,  so 
far  as  possible,  from  the  last  assessment  roll  of  the  town  ;  and 
no  person  is  entitled  to  any  reduction  in  the  valuation  of  such 
property,  as  so  ascertained,  unless  he  gives  notice  of  his  claim 
to  such  reduction  to  the  trustees  of  the  district  before  the  tax 
list  is  made  out.     (Sec.  96.) 

In  every  case  where  such  deduction  is  duly  claimed,  and  in 
every  case  where  the  valuation  of  taxable  property  cannot  be 
ascertained  from  the  last  assessment  roll  of  the  town,  the  trus- 
tees must  ascertain  the  true  value  of  the  property  to  be  taxed 
from  the  best  evidence  in  their  power,  giving  notice  to  the  per- 
sons interested,  and  proceeding  in  the  same  manner  as  the  town 
assessors  are  required  by  law  to  proceed  in  the  valuations  of 
taxable  property.     (Sec.  97.) 

Every  taxable  inhabitant  of  a  district,  who  shall  have  been 
within  four  years  set  off  from  any  other  district,  without  his 
consent,  and  shall,  within  that  period,  have  actually  paid,  in 
such  other  district,  under  a  lawful  assessment  therein,  a  district 
tax  lor  building  a  school  house,  is  to  be  exempted  by  the  trus- 
tees of  the  district  where  he  resides  from  the  payment  of  any  tax 
for  building  a  school  house  therein.     (Sec.  98.) 

Every  di.strict  lax  is  required  to  be  assessed,  and  the  tax  list 
made  out  by  the  trustees,  and  a  proper  warrant  attached  to  it, 
within  thirty  days  after  the  district  meeting  in  which  the  tax 
has  been  voted.     When  there  is  a  tax  of  more  than  one  hun- 


OF  SCHOOL  DISTRICTS.  G19 

dred  dollars,  it  is  the  duty  of  the  trustees  of  the  district,  imme- 
diately thereafter,  to  cause  notices  of  its  completion  to  be  put  up  in 
three  of  the  most  public  places  in  the  district,  and  so  located  as 
to  be  most  likely  to  give  notice  to  the  inhabitants.  There  must 
be  designated  in  the  notice  a  convenient  place  in  the  district 
where  the  trustees,  or  one  of  them,  will  attend  from  one  to  five 
o'clock  in  the  afternoon,  at  least  once  in  each  week,  for  two 
successive  weeks,  on  a  day  lo  be  specified  in  the  notice,  to  re- 
ceive payment  of  the  taxes  mentioned  in  the  tax  list.  It  is  the 
duty  of  the  trustees,  or  one  of  them,  to  attend  accordingly,  and 
any  person  may  pay  his  taxes  to  such  trustee  at  the  time  and 
place  designated,  or  at  any  other  time  and  place,  to  any  trustee 
having  the  tax  list  and  warrant,  within  fifteen  days  from  the 
first  posting  of  the  notices.     (Sec.  99.) 

It  is  the  duty  of  the  trustees,  after  the  expiration  of  thirty 
days,  to  deliver  the  tax  list  and  warrant  to  the  collector  of  the 
district.  The  collector  is  authorized  and  directed,  upon  receiv- 
ing his  warrant,  for  two  successive  weeks  to  receive  such  taxes 
as  may  be  voluntarily  paid  to  him.  If  the  whole  amount  is  not 
so  paid  in,  the  collector  must  proceed  forthwith  to  collect  the 
same.  He  is  to  receive  for  his  services,  on  all  sums  paid  in  as 
aforesaid,  one  per  cent.,  and  upon  all  sums  collected  by  him 
after  the  expiration  of  the  time  mentioned,  five  per  cent. ;  and  in 
case  a  levy  and  sale  is  necessarily  made  by  the  collector,  he  is 
entitled  to  travelling  fees  at  the  rate  of  six  cents  a  mile,  to  be 
computed  from  the  school  house  in  the  district.  (Laws,  1849, 
ch.  382.) 

If,  by  the  neglect  of  any  collector,  any  school  moneys  are  lost 
to  any  school  district,  which  might  have  been  collected  within 
the  time  limited  in  the  warrant  delivered  to  him  for  their  collec- 
tion, he  will  forfeit  to  such  district  the  full  amount  of  the  mo- 
neys thus  lost,  and  will  be  required  to  account  for  and  pay  over 
the  same  to  the  trustees  of  the  district,  in  the  same  manner  as  if 
they  had  been  collected.     (Laws,  1847,  ch.  480,  sec.  101.) 

For  the  recovery  of  all  forfeitures,  and  of  balances  in  the 
hands  of  a  collector  which  he  has  neglected  to  pay  over,  the 
trustees  of  the  district  may  sue  in  their  name  of  office,  and  are 
entitled  to  recover  the  same  with  interest  and  costs ;  and  the 
moneys  recovered  are  to  be  applied  by  them  in  the  same  man- 
ner as  if  paid  without  suit.     (Sec.  102.) 

Any  collector  to  whom  any  such  tax  list  and  warrant  are  de- 


620  OF  SCHOOL    DISTRICTS. 

livered  for  collection,  may  execute  the  same  in  any  other  dis- 
trict or  town  in  the  same  county,  or  in  any  other  county  where 
the  district  is  a  joint  district,  and  composed  of  territory  from  ad- 
joining counties,  in  the  same  manner  and  with  the  like  authority 
as  in  the  district  in  Avhich  the  trustees  issuing  the  warrant  may 
reside,  and  for  the  benefit  of  which  the  tax  is  intended  to  be 
collected.  The  bail  or  sureties  of  any  collector,  given  for  the 
faithful  performance  of  his  official  duties,  are  liable  for  any  mo- 
neys received  or  collected  on  any  such  tax  list  and  warrant,  and 
may  be  prosecuted  for  its  recovery.     (Sec.  103.) 

It  is  the  duty  of  trustees  of  school  districts  to  procure  for  the 
use  of  their  district  two  bound  blank  books  from  time  to  time, 
as  becomes  necessary,  in  one  of  which  the  accounts  of  all  mo- 
neys received  and  paid  by  the  trustees,  and  a  statement  of  all 
moveable  property  belonging  to  the  district,  is  to  be  entered  at 
large,  and  signed  by  the  trustees  at  or  before  each  annual  meet- 
ing in  the  district.  In  the  other  book,  the  teachers  are  required 
to  enter  the  names  of  the  scholars  attending  school,  and  the 
number  of  days  they  shall  have  respectively  attended,  and  also 
the  days  on  which  the  school  shall  have  been  inspected  by  the 
town  superintendent ;  which  entries  must  be  verified  by  the 
oath  or  affirmation  of  the  teachers,  and  constitute  the  list  on 
which  rate  bills  are  to  be  apportioned.  The  books  are  to  be 
preserved  by  the  trustees  as  the  property  of  the  district,  and 
delivered  to  their  successors.     (Sec.  104.) 

When  the  necesssry  fuel  for  the  school  of  any  district  is  not 
provided  by  means  of  a  tax  upon  the  inhabitants  of  the  district, 
or  otherwise,  it  is  the  duty  of  the  trustees  of  the  district  to  pro- 
vide the  necessary  fuel,  and  levy  a  tax  upon  the  inhabitants  of 
the  district  to  pay  for  the  same.     (Laws,  1849,  ch,  382,  sec.  7.) 

When  the  trustees  of  any  school  district  are  required  or  au- 
thorized by  law,  or  by  the  vote  of  their  district,  to  incur  any 
expense  for  the  district — and  when  any  expenses  incurred  by 
them  are  made,  by  express  provision  of  law,  a  charge  upon 
such  district — liiey  may  raise  the  amount  by  tax,  in  the  same 
manner  as  if  tin;  defuiitc  sum  to  be  raised  had  been  voted  by 
a  district  meeting  ;  and  the  same  is  to  be  collected  and  paid 
over  in  the  same  manner,     (liaws,  1847,  ch.  480,  sec.  109.) 

'I'lie  warrant  issiK^d  and  anncsxed  to  any  tax  list  or  rate  bill 
is  required  to  be  under  the  hands  of  the  trustees  of  the  dis- 
trict, or  a  majority  of  them.     It  is  not  necessary,  however,  for 


OF  SCHOOL  DISTRICTS.  02 1 

the  trustees  to  affix  their  seals  to  any  such  warrant.     (Id.  sec, 
110.) 

The  warrants  issued  by  the  trustees  of  school  districts  for 
the  collection  of  any  district  tax  authorized  to  be  levied,  raised 
and  collected,  or  for  the  collection  of  any  district  school  rate 
bill,  have  the  like  force  and  effect  as  warrants  issued  by  boards 
of  supervisors  of  counties  to  collectors  of  taxes  in  towns  ;  and 
the  collector  to  whom  any  such  warrant  is  delivered  for  collec- 
tion, is  authorized  and  required  to  collect  from  every  person  in 
such  (ax  list  or  rate  bill  named,  the  sum  therein  set  opposite  to 
his  name,  or  the  amount  due  from  any  person  or  persons  speci- 
fied therein,  in  the  same  manner  that  collectors  are  authorized  to 
collect  town  and  coiuity  charges.     (Sec.  111.) 

If  the  sum  or  sums  of  money,  payable  by  any  person  named 
in  the  tax  list  or  rate  bill,  is  not  paid  by  him,  or  collected  hy 
\varrant,  within  the  time  therein  limited,  the  trustees  may  re- 
new the  warrant  in  respect  to  such  delinquent  person  ;  or.  in 
case  such  person  does  not  reside  within  their  district  at  the 
time  of  making  out  a  tax  list  or  rate  bill,  or  does  not  reside 
therein  at  the  expiration  of  the  warrant,  and  no  goods  or  chat- 
tels can  be  found  therein  upon  which  to  levy,  the  trustees  may 
sue  for  and  recover  'the  same  in  their  name  of  office.  (Sec. 
112.) 

Whenever  the  trustees  of  any  school  district  discover  any 
error  m  a  tax  list  or  rate  bill  made  out  by  them,  they  may, 
with  the  approbation  and  consent  of  the  state  superintendent, 
after  refunding  any  amount  that  may  have  been  improperly 
collected  on  such  tax  list  or  rate  bill,  if  it  is  required,  amend  and 
correct  such  tax  list  or  rate  bill,  in  conformity  to  law ;  and 
whenever  more  than  one  renewal  of  a  warrant  for  the  collec- 
tion of  any  lax  list  or  rate  bill  may  become  necessary  in  any 
district,  the  trustees  may  make  such  further  renewal,  with  the 
written  approbation  of  the  town  superintendent  of  the  town  in 
which  the  school  house  of  the  district  is  located,  to  be  endorsed 
upon  the  warrant.     (Sec.  113.) 

If  the  moneys  apportioned  to  a  district  by  the  town  superin- 
tendent have  not  been  paid,  it  is  the  duty  of  the  trustees  to  bring 
a  suit  for  the  recovery  of  the  same,  with  interest,  against  the 
town  superintendent  in  whose  hands  the  same  may  be,  or  to 
pursue  such  other  remedy  for  the  recovery  thereof  as  is  given 
by  law.     (Sec.  114.) 


622  OF  SCHOOL  DISTRICTS. 

5.   Of  the  Annual  Reports  of  Trustees,  their  Duties  and  Lia- 
bilities. 

The  trustees  of  each  school  district  are  required,  between  the 
first  and  fifteenth  days  of  January  in  every  year,  to  make  and 
transmit  a  report  in  writing  to  the  town  superintendent  for  the 
town,  dated  on  the  first  day  of  January,  in  the  year  when  it  is 
transmitted.     (Laws,  1847,  ch.  480,  sec.  115.) 

Every  such  report,  signed  and  certified  by  a  majorit}?-  of  the 
trustees  making  it,  is  to  be  delivered  to  the  town  superintendent. 
The  report  must  specify — 

1.  The  whole  time  any  school  has  been  kept  in  their  district 
during  the  year  ending  on  the  day  previous  to  the  date  of  the 
report,  and  distinguishing  what  portions  of  the  time  the  school 
has  been  kept  by  qualified  teachers. 

2.  The  amount  of  moneys  received  from  the  town  superin- 
tendent during  the  year,  and  the  manner  in  which  the  moneys 
have  been  expended. 

3.  The  number  of  children  taught  in  the  district  during  the 
year. 

4.  The  number  of  children  residing  in  the  district  on  the  last 
day  of  December,  previous  to  the  making  of  such  report,  over 
the  age  of  five  years,  and  under  sixteen  years  of  age,  (except 
Indian  children  otherwise  provided  for  by  law,)  and  the  names 
of  the  parents,  or  other  persons,  with  whom  such  children  re- 
spectively aside,  and  the  number  of  children  residing  with  each. 

5.  The  amount  of  money  paid  for  teachers'  wages,  in  addition 
to  the  public  money  paid  therefor,  the  amount  of  taxes  levied  in 
said  district  for  purchasing  school  house  sites,  for  building,  hi- 
ring, purchasing,  repairing  and  insuring  school  houses,  for  fuel, 
for  supplying  deficicnces  in  raie  bills,  for  district  libraries,  or  for 
any  other  purpose  allowed  by  law,  and  such  other  information 
in  relation  to  the  schools  and  the  districts  as  the  superintendents 
of  common  schools,  may,  from  time  to  time,  require.  (Laws  of 
1847,  ch.  480,  sec.  116.     Laws  of  1849,  ch.  382,  sec.  8.) 

Tiic  trustees  of  any  school  district  may  include  in  their  annual 
returns,  the  names  of  any  children  who  are  supported  at  a  county 
poor  house  or  orphan  asylum.  (Laws  of  1847,  ch.  480,  sec. 
117.) 

The  antnial  rrports  of  trust(!Os  of  school  districts  of  children 
residing  in  their  district,  is  to  include  all  over  five  and  under 


OF  SCHOOL  DISTICTS.  623 

sixteen  years  of  age,  who  shall,  at  the  date  of  such  report, 
actually  be  in  the  district,  composing  a  part  of  the  family  of 
their  parents  or  guardians,  or  employers,  if  such  parents,  guar- 
dians, or  employers,  reside  at  th(?  time  in  such  district,  although 
such  residence  be  temporary.  The  report,  however,  cannot 
include  children  belonging  to  the  family  of  any  person  who  is 
an  inhabitant  of  any  other  district  in  this  state,  in  which  such 
children  may,  by  law,  be  included  in  the  reports  of  its  trustees. 
(Id.  sec.  118.) 

The  trustees  of  school  districts  are  not  to  enumerate  and 
include  in  their  annual  reports,  any  Indian  children  residing  on 
Indian  reservations  where  schools  are  taught.     (Sec.  119.) 

All  children  included  in  the  reports  of  the  trustees  of  any  new 
school  district,  are  entitled  to  attend  the  schools  of  such  dis- 
trict ;  and  whenever  it  is  necessary  for  the  accommodation  of 
the  children  in  any  district,  the  trustees  may  hire,  temporarily, 
any  room  or  rooms,  for  the  keeping  of  schools  therein,  the  ex- 
pense to  be  a  charge  upon  the  district.     (Id.  sec.  120.) 

Where  a  school  district  is  formed  out  of  two  or  more  adjoining 
towns,  it  is  the  duty  of  the  trustees  of  the  district,  to  make  and 
transmit  a  report  to  the  town  superintendent  for  each  of  the 
towns  out  of  which  the  district  is  formed,  within  the  same  time, 
and  in  the  same  manner,  as  required  by  sections  one  hundred 
and  fifteen  and  one  hundred  and  sixteen  ;  distinguishing  the 
number  of  children  over  the  age  of  five  and  under  sixteen  years, 
residing  in  each  part  of  a  district  which  is  in  a  different  town 
from  the  other  parts,  and  the  number  of  children  taught,  and 
the  amount  of  school  moneys  received  from  each  part  of  the 
district.     (Id.  sec.  121.) 

Where  any  neighborhood  is  set  oft"  by  itself,  the  inhabitants 
of  such  separate  neighborhood  must  annually  meet  and  choose 
one  trustee.  It  is  the  duty  of  the  trustee,  every  year,  within 
the  time  limited  for  making  district  reports,  to  make  and  trans- 
mit a  report  in  writing,  bearing  date  on  the  first  day  of  January, 
in  the  year  in  which  it  is  transmitted  to  the  town  superinten- 
dent of  the  town  from  which  such  neighborhood  is  set  off, 
specifying  the  number  of  children  over  the  age  of  five  and  under 
sixteen  years,  residing  in  the  neighborhood,  the  amount  of 
moneys  receiA'^ed  from  the  town  superintendent,  since  the  date 
of  the  last  report,  and  the  manner  in  which  the  same  has  been 
expended.     (Id.  sec.  122.) 


624  OF  SCHOOL  DISTRICTS. 

Every  trustee  of  a  school  district  or  separate  neighborliood 
who  wilfully  signs  a  false  report  to  the  town  superintendent  of 
the  town,  with  the  intent  of  causing  such  town  superintendent 
to  apportion  and  pay  to  his  district  or  neighborhood  a  larger 
sum  than  its  just  proportion  of  the  school  moneys  of  the  town, 
for  each  offence,  forfeits  the  sum  of  twenty-five  dollars,  and  is 
also  deemed  guilty  of  a  misdemeanor.     (Id.  sec.  123.) 

All  property  vested  in  the  trustees  of  any  school  district,  for 
the  use  of  schools  in  the  district,  or  which  is  transferred  to  such 
trustees  for  that  purpose,  is  to  be  held  by  them  as  a  corporation. 
(Id.  sec.  124.) 

The  trustees  of  each  school  district  are  required,  once  in  each 
year,  to  render  to  the  district,  at  its  annual  district  meeting,  a 
just  and  true  account  in  writing  of  all  moneys  received  by  them 
respectively,  for  the  use  of  their  district ;  and  of  the  manner  in 
which  the  same  has  been  expended.  The  account  is  to  be 
delivered  to  the  district  clerk,  to  be  filed  and  recorded  by  him. 
(Id.  sec.  125.) 

Any  balance  of  such  moneys  which  appears  from  such  ac- 
count to  remain  in  the  hands  of  the  trustees,  or  either  of  them 
at  the  time  of  rendering  the  account,  must  immediately  be  paid 
to  some  one  or  more  of  their  successors  in  office.     (Id.  sec.  126.) 

Every  trustee  who  refuses  or  neglects  to  render  such  account, 
or  to  pay  over  any  balance  so  found  in  his  hands,  will  forfeit 
for  each  offence,  the  sum  of  twenty-five  dollars.     (Id.  sec.  127.) 

It  is  the  duty  of  his  successors  in  office  to  prosecute,  without 
delay,  in  their  name  of  office,  for  the  recovery  of  such  forfeiture. 
The  moneys  recorded,  are  to  be  applied  by  them  to  the  use  and 
benefits  of  their  district  schools.     (Id.  sec.  128.) 

Such  successors  have  the  same  remedies  for  the  recovery  of 
any  unpaid  balance  in  the  hands  of  a  former  trustee,  or  his  rep- 
resentatives, as  are  given  to  tlie  town  supoiintendcnt  against  a 
former  town  superintendent  and  his  representatives.  The  mo- 
neys recovered  by  them,  are  to  be  applied  by  them  to  the  use  of 
their  district,  in  the  same  manner  as  if  they  had  been  paid 
williout  suit.     (Id.  sec.  129.) 

j'lvery  trustee  of  a  school  district,  who,  while  in  office; 
neglects  or  refuses  auniially  to  render  an  account  of  the  moneys 
received  b/  hiin  as  such  trustee,  for  each  oflbnce,  forfeitsthe 
sum  of  twcnly-fivc  dollars  ;  and  it  is  the  duty  of  tlie  town  su- 
perintendent of  the  town  in  which  such  trustee  may  reside,  to 


OF  SCHOOL  DISTRICTS.  625 

to  prosecute,  without  delay,  in  his  name  of  office,  for  the  reco- 
very of  such  forfeiture.  The  moneys  recovered,  are  to  be 
appUed  by  the  superintendent  to  the  use  and  benefit  of  the  dis- 
trict school  of  the  district  to  which  the  defaulting  trustee  belongs. 
(Id.  sec.  130.) 

The  town  superintendent  has  the 'same  remedies  for  the  reco- 
very of  any  unpaid  balance  of  moneys  in  the  hands  of  such 
delinquent  trustee,  in  office,  as  are  given  to  the  town  superin- 
tendent in  office  against  a  former  town  superintendent.  The 
moneys  recovered,  are  to  be  applied  by  the  town  superintendent 
to  the  use  of  the  district  to  which  the  same  belong,  and  are  to 
be  paid  over  to  the  trustee  or  trustees  of  such  district,  who  are 
not  in  default.     (Id.  sec.  131.) 

The  trustees  of  any  school  district,  may  expend  in  the  repair 
of  the  school  house,  a  sum  not  exceeding  ten  dollars  in  any  one 
year,  to  be  levied  and  collected  by  a  separate  tax,  or  added  to 
any  tax  authorized  to  be  levied  and  collected.  (Laws  of  1849, 
ch.  382,  sec.  9.) 

6.  School  District  Libraries. 

The  taxable  inhabitants  of  each  school  district  in  the  state 
have  power,  when  lawfully  assembled,  at  any  district  meeting, 
to  lay  a  tax  on  the  district,  not  exceeding  ten  dollars  in  any  one 
year,  for  the  purchase  of  a  district  library,  consisting  of  such 
books  as  they  shall,  in  their  district  meeting,  direct ;  and  such 
further  sum  as  they  may  deem  necessary  for  the  purchase  of  a 
book  case.  The  intention  to  propose  the  tax  must,  however,  be 
stated  in  the  notice  required  to  be  given  of  the  meeting.  (Laws 
of  1847,  ch.  480,  sec.  133.) 

The  clerk  of  the  district,  or  such  other  person  as  the  taxable  in- 
habitants may,  at  their  annual  meeting  designate  and  appoint, 
by  a  majority  of  votes,  is  to  be  the  librarian  of  the  district,  and 
to  have  the  care  and  custody  of  the  -library,  under  such  regula- 
tions as  the  inhabitants  may  adopt  for  his  government.  (Id. 
sec.  134.) 

The  taxes  authorized  to  be  raised,  are  to  be  assessed  and  col- 
lected in  the  same  manner  as  a  tax  for  building  a  school  house. 
(Id.  sec.  135.) 

The  sum  of  fifty-five  thousand  dollars,  together  with  an  equal 
sum  to  be  raised  in  the  towns,  and  directed  to  be  distributed  to 
the  several  school  districts  of  this  state,  are  to  continue  to  be 

40 


Q2Q  OF  SCHOOL  DISTRICTS. 

applied  to  the  purchase  of  books  for  a  district  hbrary  ;  but 
whenever  the  number  of  volumes  in  the  district  library  of  any 
district  numbering  over  fifty  children  between  the  ages  of  five 
and  sixteen  years,  exceeds  one  hundred  and  twenty-five  ;  or  of 
any  district  numbering  fifty  children,  or  less,  between  the  said 
ages  exceeds  one  hundred  volumes,  the  inhabitants  of  the  dis- 
trict qualified  to  vote  therein  may,  at  a  special  or  annual  meet- 
ing duly  notified  for  that  purpose,  by  a  majority  of  votes,  appro- 
priate the  whole,  or  any  part  of  the  library  money  belonging  to 
the  district  for  the  current  year,  to  the  purchase  of  maps,  globes, 
black  boards,  or  other  scientific  apparatus,  for  the  use  of  the 
school.  Where  the  district  has  the  required  number  of  volumes 
in  its  library,  and  also  the  requisite  number  of  maps,  globes, 
black  boards,  and  other  apparatus,  such  moneys,  with  the  ap- 
':)robation  of  the  state  superintendent,  may  be  applied  to  the 
payment  of  teacher's  wages.     (Id.  sec.  136.) 

The  trustees  of  every  school  district  are  trustees  of  the  library 
of  the  district.  The  property  of  the  books  and  of  the  case  and 
other  appurtenances  are  vested  in  the  trustees  so  as  to  enable 
them  to  maintain  any  action  in  relation  to  the  same.  It  is  their 
duty  to  preserve  the  books  and  keep  them  in  repair.  The  ex- 
penses incurred  for  that  purpose,  may  be  included  in  any  tax 
list  to  be  made  out  by  them  as  trustees  of  a  district,  and  added 
to  any  tax  voted  by  a  district  meeting,  to  be  collected  and  paid 
over  in  the  same  manner.  The  librarian  of  the  district  library 
is  subject  to  the  directions  of  the  trustees,  in  all  matters  relating 
to  the  preservation  of  the  books  and  appurtenances  of  the  libra- 
ry and  may  be  removed  from  office  by  them,  for  wilful  disobe- 
dience of  such  directions,  or  for  any  wilful  neglect  of  duty. 

(Sec.  137.) 

Trustees  of  school  districts  are  liable  to  their  successors  for  any 
neglect  or  omission  in  relation  to  the  care  and  superintendence 
of  district  libraries,  by  which  any  books  are  lost  or  injured,  to 
the  full  amount  of  such  loss  or  injury,  in  an  action  to  Ijc  brought 
l)y  such  successors  in  their  name  of  office.     (Sec.  138.) 

A  set  of  general  regulations  respecting  the  preservation  of 
school  district  libraries,  the  delivery  of  them,  by  librarians  and 
trustees,  to  their  successors  in  office,  the  use  of  them  by  the  in- 
habitants of  the  district,  the  number  of  vohnnes  to  bo  taken  by 
any  one  person  at  auy  one  tiuie,  or  during  any  term,  the  jocriods 
of  their  return,  tiie  fines  and  penalties  that  may  bo  imposed  by 


OF  SCHOOL  DISTRICTS.  027 

the  trustees  of  such  Ubraries  for  not  returning,  for  losing  or  des- 
troying any  of  the  books,  or  for  soiling,  defacing,  or  injuring 
them,  and  the  conditions  upon  which  any  school  district  may 
apply  the  library  money  to  the  payment  of  teachers'  wages, 
may  be  framed  by  the  state  superintendent.  Printed  copies 
of  the  regulations  are  to  be  furnished  to  each  school  district  of 
the  State.  The  regulations  will  be  obligatory  upon  all  persons 
and  officers  having  charge  of  such  libraries,  or  using  or  possess- 
ing any  of  the  books.  Such  fines  may  be  recovered  in  an  ac- 
tion in.  the  name  of  the  trustees  of  any  such  library  of  the  per- 
son on  whom  they  are  imposed,  unless  such  person  is  a  minor  ; 
in  which  case  they  may  be  recovered  of  the  parent  or  guardian 
of  the  minor,  unless  notice,  in  writing,  has  been  given  by  such 
parent  or  guardian  to  the  trustees  of  such  library  that  they  will 
not  be  responsible  for  any  books  delivered  such  minor  ;  and  per- 
sons with  whom  such  minors  reside  will  be  liable  in  the  same 
manner  and  to  the  same  extent,  in  cases  where  the  parent  of  the 
minor  does  not  reside  in  the  district.     (Sec.  139.) 

Any  person  conceiving  himself  aggrieved  by  any  acts  or  deci- 
sions of  any  trustees  of  school  districts,  concerning  district  libra- 
ries or  the  books  therein,  or  use  of  such  books,  of  any  librarian, 
or  of  any  district  meeting,  in  relation  to  their  school  library,  may 
appeal  to  the  state  superintendent,  in  the  same  manner  as  pro- 
vided by  law.     (Sec.  140.) 

The  legal  voters  in  any  two  or  more  adjoining  districts,  may 
in  such  cases  as  may  be  approved  by  the  town  superintendent, 
unite  their  library  moneys  and  funds,  as  they  are  received  or  col- 
lected, and  purchase  a  joint  library  for  the  use  of  the  inhabitants 
of  such  districts  to  be  selected  by  the  trustees,  or  by  such  per- 
sons as  they  designate,  and  to  be  under  a  librarian,  to  be  appoint- 
ed by  them.  The  foregoing  provisions  are  applicable  to  such 
joint  libraries,  except  that  tlie  property  in  them  is  to  be  deemed 
to  be  vested  in  all  the  trustees,  for  the  time  being,  of  the  districts 
so  united.  In  case  any  such  district  desires  to  divide  such  libra- 
ry, the  division  is  to  be  made  by  the  trustees  of  the  two  districts 
whose  libraries  are  so  united,  and  if  they  cannot  agree,  the  divi- 
sion is  to  be  made  by  the  town  superintendent.     (Sec.  141.) 

Where,  by  reason  of  the  non-compliance  with  the  conditions 
prescribed  by  law,  the  library  money  is  withheld  from  any  school 
district,  the  same  may  be  distributed  among  the  districts,  com- 
plying with  such  conditions,  or  may  be  retained  and  paid  subse- 
quently, to  the  district  from  which  the  same  was  withheld,  as 


628  OF  SCHOOL  DISTllICTS. 

directed  by  the  state  superintendent,  according  to  the  circum- 
stances of  the  case.     (Sec.  142.) 

The  state  superintendent,  whenever  requested  by  the  trustees 
of  a  school  district,  under  the  direction  of  the  legal  voters  of 
such  district,  may  select  a  library  for  their  use,  and  cause  the 
same  to  be  delivered  to  th.e  clerk  of  the  county,  in  which  such 
district  is  situated,  at  its  expense.     (Sec.  143.) 

7.  Miscellaneous  Provisions  connected  with  the  foregoing-  sub- 
jects. 

Town  superintendents  are  authorized  to  administer  oaths  in 
all  cases  relating  to  school  district  affairs  and  controversies,  but 
are  not  entitled  to  charge  any  fees  therefor.  (Laws  1849,  ch. 
382,  sec.  10.) 

Every  teacher  is  to  be  deemed  a  qualified  teacher,  w^ho  holds 
a  certificate  dated  within  one  year,  from  the  superintendent  of 
common  schools  for  the  town  in  which  such  teacher  is  employed, 
or  who  has,  in  his  prossession,  a  State  or  county  certificate  of 
qualification,  or  a  diploma  from  the  State  Normal  School.  (Id. 
sec.  11.) 

Every  town  superintendent,  during  his  continuance  in  office, 
is  to  be  deemed  a  qualified  teacher.     (Id.  sec.  9.) 

Whenever  any  money  is  paid  Into  the  treasury  of  the  State, 
for,  or  on  account  of,  the  common  school  fund,  it  is  the  duty  of 
the  comptroller  to  credit  the  common  school  fund  with  interest 
on  the  sum  so  paid  in,  at  the  rate  of  six  per  cent,  per  annum, 
for  the  time  the  same  remains  in  the  treasury.     (Sec.  13.) 

Any  person  appointed  to  the  office  of  town  superintendent  by 
Justices  of  the  Peace,  is  to  hold  his  office  till  the  first  Monday  of 
November  following  the  next  annual  town  meeting  ;  and  when- 
ever the  office  of  town  superintendent  becomes  vacant,  for  any 
cause,  or  before  the  time  of  the  annual  town  meeting  is  held  by 
a  person  so  appointed,  the  electors  of  the  town  at  such  town 
meeting  an;  to  clioose  a  suj)erintcndent  to  fill  the  vacancy, 
or  to  supersede;  such  appointee,  and  the  person  so  elected  is  to 
cater  upon  the  duties  of  tlu;  olFic(!,  on  the  first  Monday  of  No- 
vcmher  following  his  election,  to  hold  his  oflice  for  the  term  of 
two  years.     (Sec.  14.) 

Whenever  it  is  satisfactorily  jiiovod  to  the  state  superiiilend- 
enl,  that  any  county  or  town  .snpciintcndciit,  or  oilier  .--cliool  of- 


OF  SCHOOL  DISTRICTS.  629 

ficer,  has  embezzled  the  pubhc  money,  or  any  money  coming 
into  liis  hands,  for  scliool  purposes,  or  has  been  gnihy  of  the  wil- 
ful violation  of  any  law,  or  neglect  of  any  duty,  or  of  disobey- 
ing any  decision,  order,  or  regulation,  of  the  department  of  com- 
mon schools,  the  state  superintendent  is  authorized  to  remove 
such  officer  from  such  office,  by  an  order  under  the  seal  of  office 
of  the  secretary  of  state.     (Sec.  15.) 

It  is  the  duty  of  each  county  clerk,  immediately  after  the  first 
day  of  August  in  every  year,  in  case  the  town  superintendent  of 
any  town  in  his  county,  shall  have  neglected  to  make  to  him 
his  annual  report,  to  give  notice  of  such  neglect  to  the  clerk  of 
the  town,  who  must  immediately  notify  such  town  superintend- 
ent for  the  purpose  of  making  his  report.  (Laws  1847,  ch.  485, 
sec.  144.) 

Town  superintendents,  trustees,  collectors,  and  clubs  of  school 
districts,  refusing  or  wilfully  neglecting  to  make  any  report,  or 
to  perform  any  other  duty  required  by  law,  or  by  regulations  or 
decisions  made  under  the  authority  of  any  statute,  severally  for- 
feit to  their  town,  or  to  their  district,  as  the  case  may  be,  for  the 
use  of  the  common  schools  therein,  the  sum  of  ten  dollars  for 
each  neglect  or  refusal;  the  penalty  to  be  sued  for  and 
collected,  by  the  supervisor  of  the  town  and  paid  over  to 
the  proper  offices,  to  be  distributed  for  the  benefit  of  the  com- 
mon schools  in  the  town  or  district  to  which  the  penalty  belongs. 
When  the  share  of  school  or  library  money,  apportioned  to  any 
town  or  district,  or  school,  or  any  portions  thereof,  or  any  money 
to  which  a  town  or  district  would  have  been  entitled,  is  lost,  in 
consequence  of  any  wilful  neglect  of  official  duty  by  any  town 
superintendent  or  trustees,  or  clerks  of  school  districts,  the  offi- 
cers guilty  of  such  neglect,  forfeit  to  the  town  or  district,  the  full 
amount,  with  interest,  of  the  moneys  so  lost ;  and  they  are  joint- 
ly and  severally  liable  for  the  payment  of  such  forfeiture.  (Id, 
sec.  145.) 

In  any  suit  hereafter  commenced  against  town  superintend- 
ents, or  officers  of  school  districts,  for  any  act  performed  by  vir- 
tue of,  or  under  color  of  their  offices,  or  for  any  refusal  or  omis- 
sion to  perform  any  duty  enjoined  by  law,  and  which  might  have 
been  the  subject  of  an  appeal  to  the  superintendent,  no  costs  can 
be  allowed,  to  the  plaintiff  in  cases  whore  the  court  certifies  that 
it  appeared  on  the  trial  of  the  cause  that  the  defendants  acted 
in  good  faith.     This  provision,  however,  does  not  extend  to  suits 


630  ^F  SCHOOL  DISTRICTS. 

for  penalties,  nor  to  suits  or  proceedings  to  enforce  the  decisions 
of  the  superintendent.     (Sec.  146.) 

A  school  for  colored  children  may  he  established  in  any  city  or 
town  of  this  state  with  approbation  of  the  commissioners,  or  town 
superintendents  of  such  city,  or  town,  to  be  under  the  charge  of 
the  trustees  of  the  district  in  which  the  school  is  kept.  In 
places  where  no  school  districts  exist,  or  where  from  any  cause, 
it  may  be  expedient  such  school  may  be  placed  in  charge  of 
trustees,  to  be  appointed  by  the  commissioners  or  town  superin- 
tendent of  common  schools  of  the  town  or  city,  and  if  there  is 
none,  to  be  appointed  by  the  state  superintendent.  Returns  are 
10  be  made  by  the  trustees  of  such  schools  to  the  town  super- 
intendent, at  the  same  time,  and  in  the  same  manner,  as  pro- 
vided by  law  in  relation  to  districts  ;  and  they  are  required,  par- 
ticularly to  specify,  the  number  of  colored  children,  over  five, 
and  under  sixteen  years  of  age,  attending  such  sthool  from  dif- 
ferent districts,  naming  the  district  especially,  and  the  num- 
ber from  each.  The  town  superintendent  is  to  apportion  and 
pay  over  to  the  trustees  of  such  schools  a  portion  of  the  mo- 
ney received  by  them  annually  in  the  same  manner  as  pro- 
vided by  law  in  respect  to  school  districts,  allowing  to  such 
schools  the  proper  proportion  for  each  child  over  five,  and 
under  sixteen  years,  who  shall  have  been  instructed  in  such 
school  at  least  four  months,  by  a  teacher  duly  licensed,  and 
to  deduct  such  proportion  from  the  amount  that  would  have 
been  apportioned  to  the  district  to  which  such  child  belongs. 
In  his  report  to  the  state  superintendent,  the  town  superintend- 
ent is  required  specially  to  designate  the  schools  for  colored 
children  in  his  town  or  city.     (Sec.  147.) 

It  is  provided  that  the  state  superintendent  may  cause  to  be 
printed  a  sufficient  number  of  forms  of  reports  by  trustees  of 
school  districts,  and  town  superintendents  and  of  lists  of  pupils 
attending  schools,  and  cause  them  to  be  transmitted  to  the  sev- 
eral county  clerks  for  the  use  of  those  oflicers,  and  of  teachers 
of  schools  ;  and  lie  is  to  cause  title  second,  of  chapter  fifteen,  and 
part  first,  of  the  Revised  Statutes,  to  bo  printed  and  to  insert 
therein  all  acts  and  parts  of  acts,  which  have  been  passed  by 
the  legislature  connected  with  the  subjects  of  the  said  title, 
whicli  are  now  in  force  ;  and,  where  any  provisions  of  the  said 
title  have  been  altered  by  suhscquent  acts,  such  provisions  are  to 
be  varied  so  ns  to  make  them  conformable  to  such  alteration  : 


OF  SCHOOL  DISTRICTS.  631 

but  the  original  numbers  of  the  sections  are  to  be  indicated  in 
such  mode  as  he  shall  judge  proper,  except  as  herein  amended 
or  altered.  Copies  of  the  said  title  so  amended,  are  to  be  trans- 
mitted to  the  town  superintendent,  and  all  other  officers  charg- 
ed with  the  performance  of  any  duty  under  its  provisions, 
with  such  explanations  and  instructions,  as  may  be  deemed 
expedient.     (Sec.  148.) 


APPENDIX. 


THE  PROVISIONS    OF  THE    STATUTES    AND  THE   CODE,  APPLI- 
CABLE TO   JUSTICES  COURTS. 

1.   Of  the  Jurisdiction  of  Justices'  Courts. 

2  Revised  Statutes,  324,  (Sec.  1.)  Every  Justice  of  the  Peace  elected  in  any 
town  of  this  state,  or  iippointed  for  any  city  in  wjjich  special  courts  are  tiot  estab- 
lished by  law,  is  hereby  authorized  to  hold  a  court  for  the  trial  of  all  actions  in  the 
next  section  enumerated,  and  to  hear,  try  and  determine  the  same,  according  to 
law  and  equity  ;  and  for  that  purpose,  where  no  special  provision  is  otherwise  made 
by  law,  such  court  shall  be  vested  with  all  the  necessary  powers  which  are  posses- 
sed by  courts  of  record  in  this  state. 

Code,  (Sec.  53.)  Justices  of  the  Peace  shall  have  civil  jurisdiction,  in  the 
foUowinir  actions  and  no  other: 

1.  An  action  arisinjr  on  contract  for  the  recovery  of  money  only,  if  the  sum 
claimed  do  not  exceed  one  hundred  dollars  ; 

2.  An  action  for  damages  for  an  injury  to  the  person,  or  to  real  property,  or  for 
taking,  detniidng  or  injuring  personal  property,  if  the  damages  claimed  do  not  ex- 
ceed one  hundred  dollars  ; 

3.  An  action  for  a  penalty  not  exceeding  one  hundred  dollars,  given  by  statute  ; 

4.  An  action  commenced  by  attachment  of  property,  as  now  provided  by 
statute  if  the  debt  or  damages  claimed,  do  not  exceed  one  hundred  dollars  ; 

5.  An  action  upon  a  bond  conditioned  for  the  payment  of  money,  not  exceeding 
one  hundred  dollars,  though  the  penalty  exceed  that  sum,  the  judgment  to  be  given 
for  the  sum  actually  due  Where  the  payments  are  to  be  made  by  inslalmeuts, 
an  action  may  be  brought  for  each  instalment,  as  it  shall  become  due. 

6.  An  action  upon  a  surety  bond,  taken  by  them,  though  the  penalty  or  amount 
claimed,  exceed  one  hundred  dollars; 

7.  An  action  on  a  judgment  rendered  in  a  court  of  a  Justice  of  the  Peace,  or  of 
a  Justices  or  other  inferior  court  in  a  city  where  such  action  is  not  prohibited  by 
section  71. 

8.  To  take  and  enter  judgment  on  the  confession  of  a  defendant  where  the  amount 
confessed  shall  not  exceed  two  hundred  and  fifty  dollars,  in  the  manner  prescribed 
by  article  eight,  title  four,  chapter  two,  of  part  three,  of  the  Revised  Statutes. 

Code,  (Sec.  54)  But  no  Justice  of  the  Peace  shall  have  cognizance  of  a  civil 
action, 

1.  In  which  the  people  of  this  state  are  a  party,  excepting  for  penalties  not  ex- 
ceeding one  hundred  dollars  ; 

2.  JN'or  where  the  title  to  real  property  shall  come  in  question,  as  provided  by 
sections  55  to  62,  both  inclusive  ; 

3.  Nor  of  a  civil  action  for  an  assault,  battery,  false  imprisonment,  libel,  slander, 
malicious  prosecution,  criminal  conversation,  or  seduction; 

4.  Nor  of  a  matter  of  account,  where  the  sum  total  of  the  accounts  of  both  par- 
ties, proved  to  the  satisfaction  of  the  Justice  shall  exceed  four  hundred  dollars  ; 

5.  Nor  of  an  action  against  an  executor,  or  administrator,  as  such. 

Revised  St.vtutes,  (Sec.  6.)  Actions  cognizable  before  a  Justice,  may  be  brought 
by  and  against  all  persons  who  sue  or  are  sued  in  their  own  right,  and  by  and 
against  all  town  and  county  officers  in  their  official  character  ;  and  by  executors, 
administrators,  and  corporations.  * 

*  The  constitution  of  this  state  declares  that  "all  corporations  shall  have  the  right  to  sue  and 
shall  be  subject  to  be  sued,  in  all  courts,  in  like  cases  as  natural  persons."  [Vide  Cons.  art.  8, 
sec.  3.] 


634  APPENDIX. 

(Sec.  7.)  If  after  the  election  of  any  person  as  a  Justice  of  tlie  Peace  he  shall 
become  an  inn  lioldcr,  or  tavern  keeper  in  fact,  he  shall  not  have  any  power  or 
jurisdiction  under  the  provisions  of  tiiis  title  ;  but  lie  may  i.ssue  execution  upon  any 
judgment  actually  rendered  by  him,  before  he  became  so  disqualified. 

(t?ec.  8.)  No  Justice  of  the  Peace  being  a  member  of  the  senate  or  assembly, 
or  being  a  judge  of  any  county  court,  shall  be  obliged  to  take  cognizance  of  any 
action  or  to  entertain  any  proceedings  under  the  provisions  of  this  title  ;  but  he  may 
act  therein  or  not,  at  his  discretion. 

(Sec.  9.)  Every  such  action  shall  be  brought  before  some  Justice  of  the  towu, 
wherein,  either, 

1.  The  plaintiffs  or  any  one  of  thein  reside  ;  or 

2.  Where  the  defendants,  or  any  one  of  them  reside  ;  or 

3.  Before  some  Justice  of  another  town  in  the  same  county  next  adjoining  the 
residence  of  the  plaintifl  or  defendant. 

(Sec  10  )  But  if  a  defendant  has  absconded  from  his  residence,  such  action  may 
be  brouo-lit  before  a  Justice  of  the  town  in  which  such  defendant  or  his  property 
may  be  ;  and  if  the  plaintiffs  be  all  non-residents  of  the  county,  then  such  action 
may  be  brought  before  any  Justice  of  the  town  in  wliich  such  plaintiffs  or  defen- 
dant, may  be. 

2.  Of  Ihe  cotiunenceynent  of  Suits  and  the  Service  and  Return  of  Process. 

Revised  St.^tues,  326,  (Sec.  12.)  Suits  may  be  instituted  before  a  Justice 
eltiier  by  the  voluntary  appearance  and  agreement  of  the  parties,  or  by  process  ; 
when  by  process,  it  shall  be  either  a  summons,  a  warrant,  or  an  attachment. 

(Sec.  13.)  Suits  shall  be  considered  as  commenced,  at  the  times  following  : 

1.  Upon  process  by  warrant,  at  the  time  of  the  arrest  of  the  defendant  : 

2.  Upon  process  by  attachment  or  summons,  on  the  day  when  the  process  shall 
be  delivered  to  the  constable.  But  if  two  or  more  suits  be  commenced,  by  sum- 
mons or  attachment,  on  the  same  day,  the  suit  in  which  the  process  was  first  ser- 
ved, shall  be  deemed  to  have  been  first  commenced  : 

3.  Where  the  suit  is  instituted  without  process,  at  the  time  of  the  parties  join- 
ing issue. 

(Sec.  14.)  The  first  process  against  freeholders,  and  against  inhabitants  having 
families,  e-xcept  as  is  otherwise  herein  after  directed,  shall  be  a  summons  ;  but  no 
person  shall  be  proceeded  against  by  summons  out  of  the  county  in  which  he 
resides. 

(Sec.  15.)  A  summons  shall  be  directed  to  any  constable  of  the  county  where  the 
Justice  resides,  commanding  him  to  summon  the  defendant  to  appear  before  the 
Justice  who  issued  the  same,  at  a  time  and  place  to  be  named  in  such  summons, 
not  less  than  si.\,  nor  more  than  twelve  days  from  the  date  of  the  same  to  answer 
the  plaintiff  in  the  plea  in  the  same  summons  to  be  mentioned. 

(Sec.  16.)  A  summons  shall  be  in  all  cases  served  at  least  six  days  before  the 
time  of  appearance  mentioned  therein  :  if  the  defendant  shall  be  found  it  shall  be 
served  by  reading  the  same  to  the  defendant,  and,  (if  required  by  him)  delivering 
a  copy  thereof.  If  the  defendant  shall  not  be  found  it  shall  be  served  by  leaving  a 
copy  thereof  at  the  defendant's  last  place  of  abode,  in  the  presence  of  some  one  of 
the  family  of  .suitable  ago  and  discretion  who  shall  be  informed  of  its  contents. 

(Sec.  17.)  The  constable  serving  a  summons  shall  return  thereupon,  in  writing, 
the  time  and  manner  in  which  lie  executed  the  same,  and  sign  his  name  thereto. 

(Sec.  18.)  A  Justice  shall  upon  application,  issue  a  warrant  in  the  following 
cases  : 

1.  Where  the  defendant  is  a  non-resident  of  tlio  county. 

2.  Where  the  plaintiff  is  a  non-resident  and  tenders  to  the  Justice  security  for 
the  paym'-iit  of  any  sum  which  may  be  adjudged  against  liim  in  the  suit. 

3.  When  it  Khali  appear  to  the  satisfaction  of  the  Justice,  by  the  affidavit  of  the 
applicant,  or  of  any  other  vvitnes.s,  tiiat  the  person  against  whom  such  warrant  is 
de.nired,  is  about  to  de|)art  from  the  county  with  intent  not  to  return  tlureto. 

4.  Wh.-re  the  defendant  is  an  inhabitant  of  the  county  having  a  family,  or  a 
frecholilcr  of  the  samo  county,  and  it  shall  in  like  manner  appear  to  the  satisfaction 
of  the  Jusiiei-  that  the  plaintiff  will  be  in  danger  of  losing  ins  debt  or  demand,  uu- 
luHHHUcli  warrant  i)e  grunted. 

(Si'c.  20  )  In  all  canes,  on  application  for  a  warrant,  except  where  the  suit  shall 
have  been  coinincnced  by  sunimoiiH,  the  person  applying,  shall,  by  affidavit,  state 
the  facts  and  circum»lances  witlim  his  knowledge,  sliowing  the  grounds  of  his  ap- 


APPENDIX.  635 

plication  wlicreby  the  Justice  may  the  better  judge  of  the  necessity  and  pro- 
priety of  issLiinirsuch  warrant. 

(Sec.  21.)  A  warrant  sliali  be  directed  to  any  constable  of  the  county  where  the 
Jnstice  issuing  the  same  resides,  and  shall  command  such  constable  to  take  the  de- 
fendant and  bring  him  forthwith  before  such  Justice  to  answer  (he  plaintiff  in  a 
plea  in  the  same  warrant  to  be  mentioned  ;  and  shall  furl  her  require  Ihe  constable, 
after  he  shall  have  arrested  the  defendant,  to  notify  the  plaintifi"of  such  arrest. 

(Sec.  22.)  A  warrant  shall  be  served  by  arresting  the  defendant  and  taking  him 
forthwith  before  the  Justice  issuing  the  same.  If  such  Jusiice  be,  on  the  return 
thereof,  absent,  or  unable  to  hear  or  try  the  cause,  or  it  shall  be  made  to  appear  lo 
Buch  Justice  by  the  affidavit  of  such  defendant  that  .'^iich  Justice  is  a  material  wit- 
ness in  the  cause,  the  constable  shall  take  the  defendant  before  the  next  Justice  of 
the  city  or  town  who  shall  take  cognizance  of  the  cause,  and  proceed  thereon  as  if 
the  warrant  had  been  issued  by  him. 

(Sec.  23.)  Every  constable  serving  a  warrant,  shall  return  thereupon  in  writing 
the  manner  in  which  he  executed  the  same,  and  the  fact  whether  he  has,  or  has 
not,  notilied  the  plaintiff. 

(Sec.  26.)  When  a  defendant  shall  be  brought  before  a  Justice  on  a  warrant,  he 
shall  be  detained  in  the  custody  of  the  constable,  until  the  Justice  shall  direct  his 
release.  But  in  no  case  shall  the  defendant  be  detained  longer  than  twelve  hours 
from  the  time  he  shall  be  brought  before  the  Justice,  unless  within  that  time,  the 
trial  of  the  cause  shall  be  commenced  ;  or  unless  it  shall  be  delayed  at  the  instance 
of  the  defendant. 

(Sec.  24.)  Whenever  an  action  shall  be  brought  to  recover  any  penalty,  imposed 
by  law  for  taking  any  rails,  boards,  planks,  or  staves,  from  the  banks  or  vicinity  of 
a  canal,  in  which  a  Justice  is  authorized  to  direct  the  detention  of  any  canal  boat,  he 
shall  not  endorse  such  direction  on  any  warrant,  unless  a  bond,  as  prescribed  in  the 
next  section,  shall  be  executed  and  delivered  to  such  Justice. 

(Sec.  25.)  Such  bond  shall  be  in  (he  penalty  of  at  least  one  hundred  dollars,  with 
one  or  more  sureties  to  be  approved  by  such  Justice,  conditioned  that  such  action 
shall  be  prosecuted  to  judgment  with  all  convenient  speed,  and  that  if  judgment 
be  rendered  in  favor  of  the  defendant,  the  obligors  will  pay  the  costs  and  charges 
whi  h  shall  be  adjudged  against  the  plaintiff,  and  all  damages  which  may  ensue 
from  the  detection  of  such  boat  and  the  cargo  thereof,  and  the  crew  navigating  the 
same. 

(Sec.  27.)  An  attachment  against  the  property  of  any  debtor,  may  be  issued  on 
the  application  of  a  creditor  in  the  manner  hereinafter  prescribed  whenever  it  shall 
satisfactorily  appear  to  the  Justice  that  such  debtor  has  departed,  or  is  about  to 
depart  from  the  county  where  Ife  last  resided,  with  intent  to  defraud  his  creditors, 
or  to  avoid  the  service  of  any  civil  process  ;  or  that  such  debtor  keeps  himself  con- 
cealed with  the  like  intent. 

(Sec.  2S.)  Such  application  may  be  made  by  any  creditor,  or  by  his  personal  re- 
presentatives, having  a  demand  against  such  debtor  personally,  whether  liquidated 
or  not,  arising  upon  contract,  or  upon  a  judgment  rendered  within  this  state,  amount- 
ing to  one  hundred  dollars,  or  any  less  sum. 

(Sec.  29.)  Such  application  shall  be  in  writing,  and  shall  be  accompanied  by  the 
affidavit  of  the  creditor,  or  of  his  agent,  in  which  shall  be  specified  as  near  as  may 
be,  the  sum  in  which  the  debtor  is  indebted,  over  and  above  all  discounts,  to  the 
person  in  whose  behalf  application  is  made,  and  the  grounds  upon  which  the  ap- 
plication is  founded  :  and  the  facts  and  circumstances  to  establish  such  grounds 
shall  also  be  verified  by  the  affidavits  of  two  disinterested  witnesses:  and  it  shall 
be  the  duty  of  the  Justice,  on  being  r'^quested  so  to  do,  to  issue  his  subpoena,  to 
compel  the  attendance  of  any  witness  forthwith  to  make  such  affidavit.* 

(Sec.  30.)  The  applicant  shall  execute  to  the  defendant,  and  deliver  to  the 
Justice,  a  bond  with  sufficient  surety,  to  be  approved  by  such  Justice  in  writing 
upon  such  bond,  in  the  penalty  of  two  hundred  dollars,  conditioned  to  pay  such  de- 
fendant all  damages  and  costs  which  he  may  sustain,  by  reason  of  the  issuing 
such  attachment,  if  such  plaintiff"  fail  to  recover  judgment  thereon  ;  and  if  such 
judgment  be  recovered,  that  such  plaintiff  will  pay  the  defendant,  all  moneys  which 

'  The  legislature,  in  1831,  passed  an  act  dispensing  with  the  necessity  of  producing  two 
witnesses  to  state  the  facts  and  circumstances  &c.  and  allowed  the  plamtift,  or  any  person  who 
made  application  for  him,  to  make  the  necessary  proof  by  his  own  affidavit ;  so  that  the  applicant 
for  an  attachment,  does  not  now  have  to  produce  two  witnesses,  his  own  affidavit  being  sufficient. 


636  APPENDIX. 

shall  be  received  by  him,  from  any  property  levied  upon  by  such  attachment,  over 
and  above  the  amount  of  sucli  judgment,  and  interest  and  costs  thereon. 

(Sec.  31.)  Every  such  attachment  shall  state  the  amount  of  the  debt  sworn  to  by 
the  applicant,  andsliall  command  any  constable  of  the  county  in  whicii  the  Jus- 
tice resides,  to  attach  so  much  of  the  goods  and  chattels  of  the  debtor,  as  will  be 
sufficient  to  satisfy  mch  debt  ;  and  safely  to  keep  the  same,  in  order  to  satisfy  any 
judgment  that  may  be  recovered  on  such  attachment;  and  to  make  return  of  his 
proceedings  thereon,  to  the  Justice  who  issued  ilie  same,  at  a  time  therein  to  be 
specified,  not  less  than  six,  nor  more  than  twelve  days  from  the  date  thereof 

(Sec.  3:2.)  The  constable  to  whom  such  attachment  shall  be  directed  and  de- 
livered, shall  execute  the  same  at  least  six  days  before  the  return  day  ;  and  shall 
attach,  t.ike  into  his  custody,  and  safely  keep,  sucli  part  of  the  goods  and  chattels 
of  the  defendant,  as  shall  not  be  exempt  from  execution,  and  a.s  shall  be  sufficient 
to  satisfy  the  demand  of  the  plaintitF.  He  shall  immediately  make  an  inventory 
of  the  property  seized,  and  sliall  leave  a  copy  of  the  attachment,  and  of  the  inven- 
tory, certified  by  him,  at  the  last  place  of  residence  of  the  defendant;  but  if  the 
defendant  have  no  place  of  residence  in  the  county,  where  the  goods  and  chattels 
are  attached,  such  copy  and  inventory  shall  be  left  with  the  person  in  whose  pos- 
session the  said  goods  and  chattels  shall  be  found. 

(Sec  33  )  No  goods  attached  by  a  constable  shall  be  removed  by  him,  if  a  bond 
be  given  and  delivered  to  such  constable.,  by  any  person  with  sufficient  surety,  to 
be  approved  by  the  constable  in  a  penalty  double  the  sum  stated  in  the  aiiachment 
to  have  been  sworn  to  by  the  pluintitf,  conditioned  that  such  goods  and  chattels  shall 
be  produced,  to  satisfy  any  execution  that  maybe  issued  npon  any  judgment  which 
shall  be  obtained  by  tlie  plaintiff  upon  such  attachment,  within  six  months  after  the 
date  of  such  bond. 

(Sec.  34.)  If  any  person  sliall  claim  any  goods  or  chattels  attached  by  a  con- 
stable, he  may,  after  such  seizure,  and  at  anytime  before  execution  shall  have  been 
issued  ui'on  the  jiidgment  obtained  ou  such  attachment,  execute  a  bond  to  the 
plaintiff,  with  sureties  to  be  approved  by  the  constable,  or  by  the  Justice  who  issued 
the  attachment,  in  a  penalty  double  the  value  of  the  property  attached,  condition- 
ed that  in  a  suit  to  be  brought  on  such  bond,  within  three  months  from  the  date, 
such  claimiant  will  establish  that  he  was  the  owner  of  the  goods  seized,  at  the  time 
of  such  seizure  ;  and  in  case  of  his  failure  to  do  so,  that  he  will  pay  the  value  of 
the  goods  so  claimed,  with  interest. 

(Sec.  35.)  Upon  either  of  the  bonds  aforesaid,  being  executed  and  delivered  to  the 
constable,  he  shall  deliver  up  the  property  seized  by  him,  to  the  obligor  in  such 
bond. 

(Sec.  3G.)  The  constable  serving  the  attachment,  shall  make  a  return  thereof, 
at  the  day  therein  named  for  that  purpose,  with  all  his  proceedings  thereon,  iii 
writing,  subscribed  by  him,  with  a  copy  of  the  inventory  of  the  goods  attached, 
certified  by  him,  and  with  any  bond  which  may  have  been  executed  and  delivered 
to  him,  pursuant  to  the  foregoing  provisions. 

(Sec.  37.)  In  every  suit  which  shall  be  brought  upon  a  bond,  given  by  the  claim- 
ant of  property,  pursuant  to  the  preceding  [34]  section,  the  claimant  may  give  in 
evidence,  in  bar  of  a  recovery,  that  he  was  the  owner  of  the  property  seized,  at  the 
time  of  such  seizure.  If  he  fail  to  establish  such  ownership,  or  if  judgment  pass 
against  him,  by  default,  or  on  demurrer,  the  plaintitF  shall  recover  the  value  of  the 
property  so  seized  and  delivered  to  such  claimant,  with  interest,  from  the  date  of 
the  bond,  lo  bo  assessed  as  damages. 

(Sec.  38.)  if  the  amount  so  recovered,  exceed  the  amount  of  the  plaintiff's  judg- 
ment rendered  on  the  ati.ichment,  he  shall  bo  liable  to  refund  such  excess  to  the 
defendant  in  such  attachment. 

(Sec.  3!).)  If  the  defendant  shall  before  judgment,  s;ilisfy  the  claim  on  which 
such  atlacliMU'nt  issued,  anil  all  costs  tliereuii,  or  alter  judgment  shall  pay  the  same, 
lie  shall  be  entitled  to  maintain  an  aciiou  ou  the  bond  executed  by  such  claimant, 
in  hi.s  own  name,  in  the  same  manner  and  with  the  like  ellect  as  if  such  action 
had  been  br-jught  by  the  obligee  in  such  bond  as  herein  provided. 

No.v  I.M.  .\cT.  (Sec.  31)  In  addition  to  the  cases  in  which  suits  may  now  be 
commenced,  before  Justices  of  the  Peace  by  attachment,  any  suit  for  the  recovery 
of  any  debt,  or  damag<n  iniHing  upon  any  contract,  express  or  implifd,  or  upon  any 
judgment  for  fifty  doll.irH  or  less,  may  be  so  commenced,  whenever  it  shall  satisfac- 
lordy  appear  to  such  Justice  that  the  defendant  is  about  to  remove  from  ihe  county 
any  of  his  property,  with  intent  to  defraud  liiu  creditors— or  has  assigned,  disposed 


APPENDIX.  G37 

of,  secreted,  or  is  about  lo  assign,  dispose  of,  or  secrete,  any  of  Iiis  proi)erty  vvitli 
the  like  intent,  wlietlicr  such  a  defendant  be  a  resident  of  this  state  or  not. 

(See.  35.)  Before  any  atliichment  sliaii  issue  in  siii;h  case,  or  in  ttie  ca.ses  provi- 
ded for,  in  article  second,  title  fourth,  chapter  second  part  tliird  of  the  Revised 
Statutes,  tlie  i)]aintift" shall,  by  hi.s  own  afiidavit,  or  that  of  some  other  per.-^on  or 
persons,  prove  to  tiie  satisfaction  of  tlie  Justice,  the  facts  and  circumstances  to 
entitle  liirii  lo  the  same,  and  that  lie  has  such  a  claim  as  is  specified  in  the  last  pre- 
ceding section,  against  the  defendant,  over  and  above  all  discounts  which  the  de- 
fendant may  have  against  him,  specifying,  as  near  as  may  be,  the  amount  of  such 
claim,  or  the  balance  thereof;  and  such  phiintiff,  or  some  one  in  his  behalf,  shall 
also  execute  in  the  cases  provided  for,  by  this  act,  a  boiid,  in  the  penalty  of  at  least 
one  hundred  dollars,  with  such  sureties,  and  upon  such  condition,  as  is  required  in 
section  twenty  nine  of  said  article  ;  and  so  much  of  said  article  as  reqinres  any  other 
or  different  proof  for  iho  issuing  of  an  attachment  than  that  required  by  this  sec- 
tion, is  hereby  repealed. 

(Sec.  36.)  Every  attachment  issued  by  virtue  of  this  act,  or  of  the  provisions 
contained  in  the  said  record  article  shall  be  served  in  the  manner  now  provided  in 
said  article,  except  that  if  the  defendaut  can  be  found  in  the  county,  the  copy  of 
such  attachment  and  inventory  shall  be  served  on  him  personally,  instead  of  leaving 
the  same  at  the  place  now  prescribed  in  said  article:  and  the  return  of  said  officer, 
the  addition  to  what  is  now  required,  shall  state  specifically  whether  such  copy  was 
or  was  not,  personally  served  upon  the  defendant. 

(t?ec.  37.)  if  such  attachment  was  issued  in  one  of  the  cases  provided  for  by  this 
act,  and  shall  be  returned  personally  served  upon  the  defendant,  the  Justice  "shall, 
on  the  return  day,  proceed  lo  hear  and  determine  the  cause,  in  the  same  manner 
as  upon  a  summons  returned  personally  served. 

(Sec.  38.)  If  such  attachment,  was  issued  in  one  of  the  cases  ijrovided  for  by  this 
act,  and  at  the  return  day  it  shall  appear  by  the  return,  that  property  was  aitached, 
and  that  a  copy  of  such  inventory  and  attachment  was  not  personally  served,  and 
the  defendant  shall  not  appear,  the  plaintill'may  talie  out  a  summons  against  tho 
defendant;  and  if  such  summons  shall  be  returned  that  the  defendant  cannot  be 
found,  after  diligent  inquiry,  or  that  the  same  has  been  personally  served,  upon  the 
defendant,  then  in  either  case,  the  Justice  shall  proceed  to  liear  and  determine  the 
cause  in  the  same  manner  as  upon  a  summons  returned  personally  served. 

(Sec.  39.)  A  judgment  obtained  before  any  Justice  in  any  suit  commenced,  by 
attachment,  when  the  defendant  shall  not  be  personally  served  with  the  attach- 
ment, or  summons,  and  shall  not  appear,  shall  be  only  presumptive  evidence  of  the 
indebtedness  in  any  suit  that  may  be  brought  thereon,  and  may  be  expelled  by  the 
defendant;  and  no  execution  issued  upon  such  judgment,  shall  be  levied  upon  any 
other  property  than  such  as  was  seized  under  the  attachment  issued  thereon  ;  nor 
shall  any  defendant  in  such  case,  be  barred  of  any  set  olF  which  he  may  have 
against  the  plaintiff. 

3.  Of  the  Form  of  Civil  Actions. 

Code,  (Sec.  69.)  The  distinctions  between  actions  at  law,  and  suits  in  equity, 
and  the  lorms  of  all  such  actions  and  suits,  heretofore  existing,  are  aboli.shed  ;  and 
there  shall  be  in  this  state,  hereafter,  but  one  form  of  action  for  the  enforcement 
or  protection  of  private  rights,  and  the  redress  of  private  wrongs,  which  shall  be 
denominated  a  civil  action. 

(Sec.  75.)  In  such  action  tiie  party  complaining  shall  be  known  as  ihe  plaintiff, 
and  the  adverse  party  as  tho  defendant. 

(Sec.  71.)  No  action  shall  be  brought  upon  a  judgment  rendered  in  any  court  of 
this  state,  except  a  court  of  a  Justice  of  the  Peace,  between  the  same  parties,  with- 
out leave  of  the  court  for  good  cause  shown,  on  notice  to  the  adverse  party ;  and 
no  action  on  a  judgment  rendered  by  a  Justice  of  the  Peace  shall  be  brought  in  the 
same  county,  within  five  years  after  its  rendition,  except  in  case  of  his  death 
resignation,  incapacity  to  act  or  removal  from  the  county,  or  that  the  process  was, 
not  personally  served  on  the  defendaut,  or  on  all  the  defendants,  or  in  case  of  the 
death  of  some  of  the  parties,  or  where  the  docket  or  record  of  such  judirment  is, 
or  shall  have  been  lost,  or  destroyed. 

4.  The  time  of  commp.ncing  actions  in  general. 
Code,  (Sec  73.)  The  provisions  contained  in  tho  chapter  of  the  Revised  Statute 


638 


APPENDIX. 


entitled  '•' of  actions  and  the  times  of  commencing  tlicm,"  are  repealed,  and  the 
provisions  of  this  title  arc  substituted  in  tiieir  stead.  This  title  shall  not  extend  to 
actions  already  commenced,  or  to  cases  where  tho  right  of  action  has  already  ac- 
crued; but  the  statutes  now  in  force  shall  be  appiicublo  to  such  cases,  according  to 
the  subject  of  the  action,  and  without  regard  to  tiie  form. 

(Sec.  74.)  Civil  actions  can  only  be  commenced  within  the  period  prescribed  in 
this  title,  after  the  cause  of  action  shall  have  accrued,  except  where  in  special 
cases,  a  different  limitation  is  prescribed  by  statute,  and  in  the  cases  mentioned  in 
section  73. 

(Sec.  89.)  The  periods  prescribed  in  section  74,  for  the  commencement  of  ac- 
tions other  than  for  the  recovery  of  real  property,  shall  be  as  follows  : 

(Sec.  UU  )    Within  twenty  years  : 

J.  An  action  upon  a  judgment  or  decree  of  any  court  of  the  United  States,  or  of 
any  state  or  territory  within  the  United  States. 

2.  An  action  upon  a  sealed  instrument. 

(Sec.  91.)   Within  si.^c  years  : 

1.  An  action  upon  a  contract,  obligation,  or  liability,  express  or  implied  ;  excep- 
ting those  mentioned  in  section  98. 

2.  An  action  upon  a  liability  created  by  statute,  other  than  a  penalty  or  forfeit- 
ure. 

3.  An  action  for  trespass  upon  real  property. 

4.  An  action  for  taxing,  detaining,  or  injuring  any  goods  or  chattels,  including 
actions  for  the  specific  recovery  of  personal  properly. 

5.  An  action  for  criminal  conversation,  or  for  any  other  injury  to  the  person  or 
rights  of  another,  not  arising  on  contract,  and  not  hereinafter  enumerated. 

cSec.  92.)    Within  three  years: 

1.  An  action  against  a  sheriff,  coroner,  or  constable,  upon  a  liability  incurred  by 
the  doino'  of  an  act  in  his  official  capacity,  and  in  virtue  of  his  office,  or  by  the 
omission  of  an  official  duty  ;  including  the  non-payment  of  money  collected  upon 
an  execution.     But  this  section  shall  not  apply  to  an  action  for  an  escape. 

2.  An  action  upon  a  statute,  for  a  penalty  or  forfeiture,  where  the  action  is  given 
to  the  party  aggrieved,  or  to  such  party  and  the  people  of  this  state,  except  where 
the  statute  imposing  it,  prescribes  a  different  limitation. 

(Sec.  93.)    Within  two  years: 

An  action  upon  a  statute,  for  a  forfeiture  or  penalty  to  the  people  of  this  state. 

(Sec.  94.)    Within  one  year: 

An  action  against  a  sheriff  or  other  officer,  for  the  escape  of  a  prisoner,  arrested 
or  imprisoned  on  civil  process. 

(Sec.  9.'i )  In  an  action  brought  to  recover  a  balance  due  upon  a  mutual,  open, 
and  current  account,  where  there  have  been  reciprocal  demands  between  the  par- 
tics,  the  cause  of  action  shall  be  deemed  to  have  accrued,  from  the  time  of  the  last 
item  proved  in  the  account,  on  either  side. 

(Sec.  91J.)  An  action  upon  a  statute  for  a  penalty  or  forfeiture,  given  in  whole  or 
in  part  to  any  person  who  will  prosecute  for  the  same,  must  be  commenced  within 
one  year  after  the  commission  of  the  offence  ;  and  if  the  action  be  not  commenced 
within  the  year,  by  a  private  party,  it  may  be  commenced  within  two  years  there- 
after, in  behalf  of  tlie  people  of  this  state  by  tho  attorney  general,  or  district  attor- 
ney of  the  county  where  tho  offence  was  committed. 

(Sec.  98.)  The  limitations  prescribed  in  this  ch!ii)ter,  shall  apply  to  actions  brought 
in  the  name  of  the  people  of  this  state,  or  for  their  benefit,  in  the  same  manner  as 
to  actions  by  private  parties. 

5.  Grnerul  Provisions  ns  to  the  lime  of  commencing  actions. 

Code,  (Sec.  99.)  An  action  shall  not  be  docmad  comnuMiced  within  the  meaning 
of  thi8  title  unless  it  appear, 

1.  That  the  summons,  or  other  process  therein,  was  duly  served  upon  the  defen- 
dants or  one  of  them  ;  or 

2.  'I'lial  tho  siiniinons  or  other  process  was  delivered  with  the  intent  that  it 
Bhouhl  bi-  actually  served,  to  tiio  Hherill' or  other  officer  of  tho  county,  in  which  the 
di:fe,n(lan'.s,  or  ouf  o(  tlictn,  UHually  or  last  resided  ;  or  if  a  corporation  bo  defen- 
dant to  till!  sln-riff  (ir  other  odiccr  of  the  county  in  which  S'lch  corporation  was  es- 
tablished by  law,  or  where  its  general  business  was  transacted,  or  where  it  kept  un 
olfice  [or  the  transactiini  of  buwincfs. 


APPENDIX.  639 

(Sec.  100.)  If  when  the  cause  of  action  .sliall  accrue  against  a  person  lie  1)6  out 
of  tlie  slate,  tiie  action  maybe  coninicncecl  within  tlie  term  herein  jiniiteci,  after 
his  return  to  the  slate  ;  and  if  after  tlie  cause  of  action  shall  have  accrued,  lie  de- 
part from  the  state,  the  time  of  his  absence,  shall  not  he  part  of  the  time  limited  for 
the  commencement  of  the  action. 

(Sec.  101.)  If  a  person  entitled  to  bring  an  action  mentioned  in  the  last  i)rece- 
ding  chapter,  excejit  for  a  penalty  or  forfeiture,  or  against  a  sherifF,  or  other  officer 
for  an  escape,  be,  at  the  time  the  cause  of  action  accrued,  either, 

1.  Within  the  age  of  twenty  one  years  ;  or 

2.  Insane  ;  or 

3.  Imprisoned  ou  a  criminal  charge,  or  in  execution  under  the  sentence  of  a  cri- 
minal court,  for  a  term  less  than  his  natural  life  ;  or 

4.  A  married  woman  : 

The  time  of  each  disability  shall  not  be  a  part  of  the  time  limited  for  the  com- 
mencement of  the  action. 

(Sec.  102.)  If  a  person  entitled  to  bring  an  action  die  before  the  expiration  of  the 
time  limited  for  the  commencement  thereof,  and  the  cause  of  action  survive,  an  ac- 
tion may  be  commenced  by  his  representatives,  after  the  expiration  of  that  time, 
and  within  one  year  from  his  death.  If  a  person  against  whom  an  action  may  be 
brought,  die  before  the  expiration  of  the  time  limited  for  the  commencement  there- 
of, and  the  cause  of  action  survives,  an  action  may  be  comtrenccd  against  his  ex- 
ecutors or  administrator,  after  the  expiration  of  that  time,  and  within  one  year  after 
the  issuing  of  letters  testamentary,  or  of  administration. 

(Sec.  10.3.)  When  a  person  shall  be  an  alien  subject,  or  citizen  of  a  country  at 
war  with  the  United  Slates,  the  time  of  the  continuance  of  the  war,  shall  not  be 
part  of  the  period  limited  for  the  commencement  of  the  action. 

(Sec.  104.)  If  an  action  shall  be  commenced  within  the  time  prescribed  therefor, 
and  a  judgment  therein  for  the  plaintiff,  be  reversed,  on  appeal,  the  plaintiff',  or  if 
he  die,  and  the  cause  of  action  survive,  his  heirs  or  representatives  may  commence 
a  new  action  within  one  year  after  the  reversal. 

(Sec.  10.).)  When  the  commencement  of  an  action  shall  be  stayed  by  injunction, 
or  statutory  prohibition,  the  time  of  the  continuance  of  the  injunction,  or  prohibi- 
tion, shall  not  be  part  of  the  time  limited,  for  the  commencement  of  the  action 

(Sec.  1(16.)  No  person  shall  avail  himself  of  a  disability,  unless  it  existed  when 
his  right  of  action  accrued. 

(Sec.  107.)  When  two  or  more  disabilities  shall  co-exist,  at  the  time  the  right  of 
action  accrues,  the  limitation  shall  not  attach  until  they  all  be  removed. 

(Sec.  108.)  This  title  shall  not  affect  actions  to  enforce  the  payment  of  bills, 
notes,  or  other  evidences  of  debt,  issued  by  monied  corporations,  or  issued  or  put  in 
circulation  as  money. 

(Sec.  109.)  This  title  sliall  not  affect  actions  against  directors  or  stockholders 
of  a  monied  corporation,  or  banking  associations  to  recover  a  penalty  or  forfeiture 
imposed,  or  to  enforce  a  liability  ci-eated  by  law  ;  hut  such  actions  must  be  brought 
within  six  years  after  the  discovery,  by  the  aggrieved  party,  of  the  facts  u[)on 
which  the  penalty  or  forfeiture  attached,  or  the  liability  was  created. 

(Sec.  110.)  No  acknowledgment,  or  promise,  shall  be  sufficient  evidence  of  a 
new  or  continuing  contract,  whereby  .to  take  the  case  out  of  the  operation  of  this 
title,  unless  the  same  be  contained  in  some  writing,  signed  by  the  party  lo  be 
chargt'd  thereby  ;  but  this  section  shall  not  alter  the  effect  of  any  payment  of 
principal,  or  interest. 

6,   Of  the  Parlies  to  Civil  Actions. 

Code,  (Sec.  llJ.j  Every  action  must  be  prosecuted  in  the  name  of  the  real  party 
in  interest,  except  as  otherwise  provided  in  section  ll.^. 

(Sec.  112.)  In  the  case  of  an  assignment  of  a  thing  in  action,  the  action  by  the 
assignee  shall  be  without  prejudice  to  any  set  off  or  other  defence  existing  at  the 
time  of,  or  before  notice  of  the  assignment;  but  this  section  shall  not  apply  to  a 
negoliuble  promissory  tiote  or  bill  of  exchange,  transferred  in  good  faith  and  upon 
good  consideration,  before  due. 

(Sec.  ll;j.)  An  executor  or  administrator,  or  trustees  of  an  express  trust,  or  a 
person  expressly  authorized  by  statute,  may  sue  without  joining  with  him  the  per- 
sons for  whose  benefit  the  suit  is  prosecuted. 


(340  APPENDIX. 

(Sec  1 14.^  When  a  married  woman  is  a  party,  lier  husband  must  be  joined  with 
her,  except  that 

1.  When  the  action  concerns  her  separate  property,  she  may  sue  alone  : 

2.  When  tlie  action  is  between  licrself  and  Jier  husband,  slie  may  sue  or  be  sued 
alone. 

i^Sec.  117)  All  persons  having  an  interest  in  the  subject  of  the  action,  and  in  ob- 
taininjf  the  relief  demanded,  may  be  joined  as  plaintiffs,  except  as  otherwise  provi- 
ded in  liiis  tiile. 

(Sec.  118.)  Any  person  may  bo  made  a  defendant,  who  has,  or  claims,  an  in- 
terest in  the  controversy  adverse  to  the  plaintiff,  or  who  is  a  necessary  parly  to  a 
complete  determination  or  settlement  of  the  questions  involved  therein. 

(Sec  119.;  Of  tiie  parties  to  the  action,  those  wlio  are  united  in  interest,  must 
be  joined  as  plaintiffs  or  defendants  ;  but  if  tlie  consent  of  any  one  who  should  have 
been  joined  as  plaintiff,  cannot  be  obtained,  lie  may  be  made  a  defendant,  the 
reason  thereof,  being  stated  in  the  complaint;  and  wlien  the  question  is  one  of  a 
common  or  general  interest  of  many  persons,  or  wlien  the  parties  are  very  numer- 
ous, and  it  may  be  impracticable  to  bring  them  all  before  the  court,  one  or  more 
may  sue  for  the  benefit  of  the  whole. 

(Sec.  12U.)  Persons  severally  liable  upon  the  same  obhgation  or  instrument,  in- 
cluding the  party  to  bills  of  exchange  and  [jromissory  notes,  may,  all  or  any  of  them, 
be  included  in  the  same  action,  at  the  option  of  the  plaintiff. 

(Sec.  121.)  No  action  sliall  abate  by  the  death,  marriage,  or  other  disability  of  a 
party, or  by  the  transfer  of  any  intciest  therein,  if  the  cause  of  action  survive  or 
continue.  In  case  of  death,  marriage,  or  other  disability  of  a  party  the  court,  on 
motion,  at  any  lime  within  one  year  thereafter,  or  afterwards  on  a  supplemental 
complaint  may  allow  the  action  to  be  continued,  by  or  against  his  representative 
or  successor  in  interest.  In  case  of  any  other  transfer  of  interest,  the  action  shall 
be  continued  in  the  name  of  the  original  party  ;  or  the  court  may  allow  the  person 
to  who(n  the  transfer  is  made  to  be  substituted  in  the  action. 

(Sec.  122)  The  court  may  determine  any  controversy  between  the  parties,  be- 
fore it,  when  it  can  be  done  without  prejudice  to  the  rights  of  others,  or  by  saving 
their  rights  ;  but  when  a  complete  determination  of  the  controversy  cannot  be  had, 
without  ihe  presence  of  other  parties,  the  court  shall  order  them  to  be  brought  in. 

7.  Of  ihe  Appearance  of  Parties. 

2  Revised  Statutes.  (Sec.  48,  p.  330.)  Any  plaintiff  in  a  suit  before  a  Justice, 
e.\cept  persons  under  twenty  one  years  of  age  may  appear  and  conduct  his  suit, 
either  in  person  or  by  attorney. 

(Sec.  42.)  Every  defendant  in  a  suit,  except  persons  under  twenty  one  years  of 
age,  may  appear  and  defend  tlie  same,  in  person,  or  by  attorney  ;  but  where  a 
warrant  shall  have  been  served  on  a  defendant,  and  returned,  no  further  proceed- 
ings shall  be  had  against  him,  until  he  shall   have  persoiiallj'  appeared  in  court. 

(Sec  45.)  A  party  authorized  to  appear  by  attorney,  may  appoint  any  person  to 
act  as  such  attorney  ;  but  the  constable  who  served  either  the  original,  or  jury  pro- 
cess in  the  cause,  shall  not  appear  and  advocate  for  either  party  at  the  trial,  but 
may  act  as  attorney  at  any  otlier  stage  or  proceeding  in  the  cause. 

(.See.  'l(i)  'Ihe  authority  to  appear  by  attorney,  may  be  either  written  or  verbal, 
and  shall  in  all  cases,  be  jjroved,  either  by  the  attorney  hnnself,  or  other  competent 
testimony,  unless  admitted  by  the  opposite  party  ;  and  the  Justice  shall  not  permit 
any  person  to  appear  for  another,  without  such  proof  or  admission. 

Code,  (Sec.  115)  When  an  infant  is  a  party,  he  must  appear  by  guardian,  who 
may  be  ap!)oiiUed  by  the  court,  in  which  iho  action  is,  prosecuted,  or  by  a  judge 
thereof,  or  a  county  judge. 

(Sec.  IKi)   'I'lie  guardian  shall  be  ap|)ointed  as  follows; 

1.  When  liio  infant  is  plaintif]",  upon  the  petition  of  the  infant,  if  he  be  of  the 
age  of  fourletii  years  ;  or  if  under  that  age,  upon  the  petition  of  some  other  |)arty 
to  the  t-uil,  or  of  a  relative  or  friend  of  the  inlant. 

2.  When  the  infant  is  defendant,  u|>on  the  jjelilion  of  the  infant,  if  he  bo  of  the 
age  of  (onrleen  jears,  and  a|)ply  within  twenty  tiays  after  the  service  of  the  sum- 
mon.s.  If  he  be,  undiT  the  ago  of  fourteen,  or  neglect  so  lo  apply,  then  upon  the 
petition  of  any  other  party  to  the  untion,  or  of  u  relative  or  friend  of  the  inlant. 

2  Rkvibed  STAruTEB.  (Sec.  47,  p.  '.VM.)  Upon  tlio  return  of  a  summons  person- 


APPENDIX.  641 

ally  served,  or  on  (lie  return  of  an  attachment  duly  served,  the  Justice  shall  wait 
one  iiour  after  the  time  gpecified  for  llie  return  oi  such  process,  unless  the  parties 
shall  sooner  appear. 

8.  Of  Pleadings  and  of  Set-Off. 

2  Revised  Statutes  (Sec.  48,  p.  331.)  At  the  time  of  the  first  appearance  of 
the  parties  before  the  Justice,  eitlier  upon  the  return  of  process,  or  their  voluntary 
appearance  to  join  issue,  the  pleadings  of  the  parties  shall  be  made,  and  the  issue 
joined  ;  and  when  both  parties  have  appeared  on  the  return  of  j)rocess,  an  issue 
shall  be  joined  before  any  adjournment  shall  be  had,  except  when  the  defendant 
shall  refuse  or  neglect  to  plead. 

Code.  (Sec.  64)  The  following  rules  shall  be  observed  in  courts  of  Justices  of 
the  Peace : 

1.  The  pleadings  in  these  courts  are  : 

1.  The  complaint  by  the  plaintiff. 

2.  The  answer  by  the  defendant. 

2.  The  pleadings  may  be  oral  or  in  writing  ;  if  oral,  the  substance  of  them,  shall 
be  entered  by  the  Justice  in  his  docket  ;  if  in  writing,  they  shall  be  filed  by  him, 
and  a  reference  to  them  shall  be  made  in  the  docket. 

3.  The  complaint  shall  state,  in  a  plain  and  direct  manner,  the  facts  constituting 
the  cause  of  action. 

4.  The  answer  may  contain  a  denial  of  the  complaint,  or  of  any  part  thereof, 
and  also  notice  in  a  plain  and  direct  manner,  of  any  facts  constituting  a  defence. 

5.  Pleadings  are  not  required  to  be  in  any  particular  form,  but  must  be  such  as  to 
enable  a  person  of  common  understanding  to  know  what  is  intended. 

6.  Either  party  may  demur  to  a  pleading  of  his  adversary,  or  any  part  thereof, 
when  it  is  not  sufficiently  explieil  to  enable  him  to  understand  it,  or  it  contains  no 
cause  of  action,  or  defence,  although  it  be  taken  as  true. 

7.  If  the  court  deem  the  objection  well  founded,  it  shall  order  the  pleading  to 
bo  amended,  and  if  the  party  refuse  to  amend,  the  defective  pleading  shall  be  dis- 
regarded 

8.  In  case  a  defendant  does  not  appear  and  answer,  the  plaintiff  cannot  recover, 
without  proving  his  case. 

9.  In  an  action,  or  defence,  founded  upon  an  account,  or  an  instrument  for  the 
payment  of  money  only,  it  shall  be  sufficient  for  the  party  to  deliver  the  account 
or  instrument  to  the  court,  and  to  state  that  there  is  due  to  him  thereon,  from  the 
adverse  party,  a  specified  sum,  which  he  claims  to  recover  or  set  off. 

10.  A  variance  between  the  proof  on  the  trial,  and  the  allegations  in  a  pleading, 
shall  be  disregarded  as  immaterial,  unless  the  court  shall  be  satisfied  that  the  ad- 
verse party  has  been  misled  to  his  prejudice  thereby. 

11.  The  pleadings  may  be  amended  at  any  time  before  the  trial,  or  during  the 
trial,  or  upon  appeal,  when  by  such  amendment,  substantial  justice  will  be  pro- 
moted. If  the  amendment  be  made  after  the  joining  of  the  issue,  and  it  be  made 
to  appear  to  the  satisfaction  of  the  court,  by  oath,  that  an  adjournment  is  necessary 
to  the  adverse  party,  in  consequence  of  such  amendment,  an  adjournment  shall  be 
granted.  The  court  may  also,  in  its  discretion,  require  as  a  condition  of  an  amend- 
ment, the  payment  of  costs  to  the  adverse  party,  to  be  fixed  by  the  court  ;  but  no 
amendment  shall  be  allowed,  after  a  witnes.s  is  sworn  on  a  trial,  when  an  adjourn- 
ment thereby  will  be  made  necessary. 

12.  The  court  may,  at  the  joining  of  issue,  require  either  party,  at  the  request  of 
the  other,  at  that  or  some  other  specified  time,  to  exhibit  his  account  on  demand, 
or  state  the  nature  thereof,  as  far  forth  as  may  be  in  his  power,  and  in  case  of  his 
default  preclude  him  from  giving  evidence  of  such  parts  thereof  as  shall  not  have 
been  so  exhibited  or  stated. 

(Sec.  5j.)  In  every  action  brought  in  a  court  of  justice  of  the  peace,  where  the 
title  to  real  property  shall  come  in  question,  the  defendant  may,  either  with  or  with- 
out other  matter  of  defence,  set  forth  in  his  answer  any  matter,  showing  that  such 
title  will  come  in  question.  Such  answer  shall  be  in  writing,  signed  by  the  defen- 
dant or  his  attorney,  and  delivered  to  the  justice.  The  justice  shall  thereupon  coun- 
tersign the  same,  and  deliver  it  to  the  plaintifY. 

(Sec.  56.)  At  the  time  of  answering,  the  defendant  shall  deliver  to  the  justice  a 

41 


(342  APPENDIX. 

written  undertaking,  executed  by  at  least  one  sufllciejit  surety,  and  approved  by 
the  justice,  to  the  effect  that  if  the  plaintifT  shall,  witiiin  thirty  days  thereafter, 
deposit  with  the  justice,  a  sumnioiis  and  complaint,  in  an  action  in  the  Supreme 
Court  for  the  same  cause,  the  defendant  will,  within  ten  ddys  after  such  deposit, 
aive  an  admission  in  writing  of  the  service  tiiereof.  Where  the  defendant  was  ar- 
rested in  the  action  before  the  justice,  the  undertaking  shall  further  provide,  that  he 
will,  at  all  times,  render  himself  amenable  to  the  process  of  the  court  during  the 
pendency  of  the  action,  and  to  such  as  may  be  issued  to  enforce  the  judgment 
therein.  In  case  of  failure  to  comply  with  the  undertaking  the  surety  shall  be  liable, 
not  exceeding  one  hundred  dollars. 

(Sec.  57.)  Upon  the  delivery  of  the  undertaking  to  the  justice,  the  action  before 
him  shall  be  discontinued,  and  each  party  shall  pay  his  own  costs.  The  coats  so 
paid  by  either  party  shall  be  allowed  to  him,  if  he  recover  costs  in  the  action  to  be 
brought  for  the  same  cause  in  the  Supreme  Coiirt.  If  no  such  action  be  brought 
within  thirty  days  after  the  delivery  of  the  undertaking,  the  defendant's  costs  before 
the  justice  may  be  recovered  of  the  plaintiff. 

(Sec  58.)  If  the  undertaking  be  not  delivered  to  the  justice,  he  shall  have  juris- 
diction of  the  cause,  and  shall  proceed  therein;  and  the  defendant  shall  be  pre- 
cluded in  his  defence  from  drawing  the  title  in  question. 

(Sec.  59.)  If,  however,  it  appear  on  the  trial,  from  the  plaintiff''s  own  showing, 
that  the  title  to  real  property  is  in  question,  and  such  title  siiall  be  disputed  by  the 
defendant,  the  justice  shall  dismiss  the  action,  and  render  judgment  against  the 
plaiutitffor  the  costs 

(Sec.  bO.)  When  a  suit  before  a  justice  shall  be  discontinued  by  the  delivery  of 
an  answer  and  undertaking,  as  provided  in  sections  55,  5G,  and  57,  the  plaintiff  may 
prosecute  an  action  for  the  same  cause  in  the  Supreme  Court,  and  shall  complain 
lor  the  same  cause  of  action  only  on  which   he  relied  before  the  justice. 

(Sec.  61.)  If  the  judgment  in  the  Supreme  Court  be  for  the  plaintiff,  he  shall  re- 
cover costs.  If  it  be  for  the  defendant,  he  shall  recover  costs;  except  that  upon  a 
verdict,  he  shall  pay  costs  to  the  plaintiff",  unless  the  judge  certify  that  the  title  to 
real  (iroperty  came  in  question  on  the  trial. 

(Sec.  62.)  if  in  an  action  before  a  ju.stiee,  the  plaintiff"  have  several  causes  of 
action,  to  one  of  which  the  defence  of  title  to  real  properly  shall  be  interposed,  and 
as  to  such  cause,  the  defendant  shall  answer  and  deliver  an  undertaking,  as  pro- 
vided in  sections  55  and  56,  the  justice  shall  discontinue  the  proceedings,  as  to  that 
cause  and  the  plaintiff"  may  commence  another  action  therefor  in  the  Supreme 
Court.  As  to  the  other  causes  of  action,  the  justice  may  continue  his  pro- 
ceedings. 

2  Reviser  Statutes.  (Sec.  51,  p.  352.)  In  the  following  cases,  and  under  the 
following  circumstances,  a  defendant  may  set  off"  demands  which  he  has  against 
the  plaintiff". 

1.  It  ninsl  be  a  demand  arising  upon  judgment,  or  upon  contract,  express  or  im- 
plied, whether  such  contract  be  written  or  unwritten,  sealed  or  without  seal  ;  and  if 
it  be  founded  upon  a  bond  or  other  contract  having  a  penalty,  the  sum  equitably 
due  by  virtue  of  its  condition,  only,  shall  be  set  off". 

2.  It  must  bo  due  to  bin)  in  his  own  right,  either  as  being  the  original  creditor  or 
payee,  or  as  being  the  assignee  or  owner  of  the  demand. 

3.  It  must  be  a  demand  for  real  estate  sold,  or  for  per.sonal  property  sold,  or  for 
money  paid,  or  services  done  ;  or  if  it  be  not  such  a  demand,  the  amount  must  be 
liquidated,  or  be  capable  of  being  ascertained  by  calculation. 

4.  It  niu.st  have  existed  at  the  time  of  the  commencement  of  the  suit,  and  must 
then  have  belonged  to  the  defendant. 

5.  It  can  be  allowed  only  in  actions  founded  upon  demands  which  could  ihem- 
Belves  be  the  subject  of  set  oil",  according  to  law. 

fi.  If  there  be  several  defendants,  the  demand  sot  oft'  must  be  due  to  all  of  them 
jointly. 

7.  It  must  bo  a  demand  existing  against  the  ])laintiff  in  the  action,  unless  the  suit 
be  brought  in  the  name  of  a  plaintiff"  who  has  no  real  interest  in  the  contract  upon 
whi'li  the  unit  is  fi,uiidi-il  ;  in  which  case  no  set  off"  of  u  demand  against  the  plaintiff 
shall  b(!  allowed,  unless  as  In-reinarier  specified. 

8.  If  the  action  be  founded  upon  a  contract  (other  than  a  negotiable  promissory 
note  or  bill  of  exchange)  which  has  b.'un  a.ssigued  by  the  plaintiff',  a  demand  exist- 
ing against  such  [thuiitilV,  or  any  as.signee    of  such   contract,  at  the  time  of  the  as- 


APPENDIX.  G43 

Bigument  thereof,  and  belongincr  to  tlie  defendant  in  good  faitli,  before  notice  of 
such  assignment,  may  be  set  oti'  to  the  amount  of  tiie  [)l;iin(iff's  debt,  if  tiic  de- 
mand Lie  such  as  might  have  been  set  oil'  against  such  plaiutifl",  or  such  assignee, 
while  the  contract  belonged  to  him. 

9.  If  the  action  be  upon  a  negotiable  promissory  note,  or  bill  of  exchange,  whicli 
has  been  assigned  to  the  plaintifi'  afler  ii  became  due,  a  set-ofT  to  the  amount  of  the 
plaintitT's  debt  may  be  made  of  a  demand  existing  against  any  person  or  persons 
who  shall  have  assigned  or  transferred  such  note  or  bill  after  it  became  due,  if  the 
demand  be  such  as  might  have  been  set  off  against  the  assignor,  while  the  note  or 
bill  belonged  to  him. 

10.  If  the  plaintiff  be  a  trustee  for  any  other,  or  if  the  suit  be  in  the  name  of  a 
plaintitl'who  has  no  real  interest  in  the  contract  upon  which  the  suit  is  founded,  so 
much  of  a  demand  existing  against  those  whom  the  plaintiff  rejiresents,  or  for 
whose  benefit  the  action  is  brought,  may  be  set  off,  as  will  satisfy  the  plaintiff's 
debt,  if  the  same  might  have  been  set  off  in  an  action  brought  by  those  beneficially 
interested. 

11.  But  if  such  action  be  brought  by  tlie  assignee  of  an  insolvent,  imprisoned, 
absent,  concealed,  or  absconding  debtor,  no  set-off  shall  be  allowed  of  any  debt,  un- 
less in  the  cases  provided  in  the  fifth  chapter  of  the  second  part  of  the  Revised 
Statutes. 

(Sec.  53.)  To  entitle  a  defendant  to  a  set-cff,  he  must  plead  or  give  notice  of  the 
same,  specifying  the  nature  of  his  claim,  with  reasonable  certainly,  at  the  time  of 
joining  issue  on  a  question  of  fact  upon  the  merits  of  the  cause. 

(Sec.  53.)  If  the  amount  of  the  set-off  duly  established  be  equal  to  the  plaintiff's 
debt,  judgment  shall  be  entered  for  the  defendant,  with  costs;  if  it  be  less  than 
the  plaintiff 's  debt,  the  plaintiff  shall  have  judgment  for  the  residue  only,  with 
costs.  If  it  be  more  than  the  plaintifi''s  debt,  and  the  balance  found  due  to  the  de- 
fendant from  the  plaintiff  in  the  action  be  one  hundred  dollars  or  under,  judgment 
sliall  be  rendered  for  the  defendtint  for  the  amount  thereof,  with  costs  ;  and  execu- 
tion shall  bo  awarded  as  upon  a  judgment  in  a  suit  brought  by  him  ;  but  no  such 
judgment  shall  be  rendered  against  the  plaintiff  when  the  contract,  which  is  the 
subject  of  the  suit,  shall  have  been  assigned  before  the  commencement  of  such  suit, 
nor  for  any  balance  due  from  any  other  person  than  the  plaintiff  in  the  action. 

(Sec  54.)  If  the  balance  found  due  to  the  defendant  exceed  one  hundred  dol- 
lars, the  Justice  shall  set  oft' so  much  of  the  defendant's  demand  against  the  jilain- 
tiff's  debt  as  will  be  sufficient  to  satisfy  it,  if  required  to  do  so  by  the  defendant,  and 
shall  render  judgment  for  the  defendant  for  his  costs;  but  if  the  defendant  shall 
not  require  such  set-off,  the  Justice  shall  enter  judgment  of  discontinuance  for  the 
defendant,  with  costs  ;  and  the  defendant  may  thereafter  sue  for  and  recover  his 
demand  in  any  court  having  cognizance  thereof. 

(Sec.  55.)  If,  upon  the  trial  of  a  cause,  it  shall  appear  that  the  amount  of  the 
plaintiff's  claim,  together  with  the  demands  set  off  by  the  defendant,  according  to 
the  preceding  provisions,  exceed  fuur  hundred  dollars,  judgment  of  discontinuance 
shall  be  rendered  against  the  plainlitT,  with  costs. 

(Sec.  56.)  In  suits  brought  by  executors  or  administrators,  the  defendant  may 
set  off  demands  existing  again.st  their  testators  or  intestates,  and  belonging  to  the 
defendant,  at  the  time  of  their  death,  in  the  same  manner  as  if  the  action  had  been 
brought  by,  and  in  the  name  of  the  deceased. 

(Sec.  57.)  Whenever  a  set-off  is  estahlishcd  in  a  suit  brought  by  executors  or  ad- 
ministrators, the  judgment  shall  be  against  them  in  their  representative  character, 
and  shall  be  evidence  of  a  debt  established,  to  be  paid  in  the  course  of  administra- 
tion ;  but  execution  shall  not  issue  thereon,  until  directed  by  the  surrogate,  who 
granted  letters  testamentary  or  of  administration. 

(Sec.  58.)  If  a  defendant  neglect  to  plead,  or  give  notice  of  any  set-off,  which, 
according  to  the  preceding  provisions,  might  have  been  allowed  to  him,  on  tlie  trial 
of  the  cause,  he  shall  be  forever  thereafter  precluded  from  maintaining  any  action 
to  recover  the  same,  or  any  part  thereof.  And  if  the  demand,  which  might  have 
been  set  off,  consisted  of  a  negotiable  note  or  bill  of  exchange,  no  action  shall  be 
maintained  thereon  by  any  person  who  may  derive  title  thereto,  from  or  through 
the  defendant. 

(Sec.  5:L  But  the  last  preceding  section  shall  not  extend  to  the  following  cases  : 

1.  When  the  set-off  shall  be  one  hundred  dollars  more  than  the  judgment  which 
the  plaintiff  shall  have  recovered. 

2.  When  the  set-off  consisted  of  a  judgment  in  favor  of  the  defendant,  or  belong- 


544  APPENDIX. 

ing  to  him,  rendered  before  llie  commencement  of  the  suit  in  which  the  same  might 
have  been  set  off. 

3.  Wlien  a  set-ofF shall  have  been  claimed  by  him,  and  a  balance  exceeding  one 
hundred  dollars  shall  have  been  found  in  his  favor,  the  defendant  may  maintain  an 
action  for  such  part  of  his  demand  as  was  not  allowed  to  him  as  a  set-oli' 

4.  When  the  suit  was  commenced  against  the  defendant  by  attachment,  and  he 
did  not  personally  appear  in  such  suit. 

5.  Claims  foi  unliquidate<l  damages  which  could  not  be  set  off  on  the  trial  of  tlie 
cause,  according  to  the  preceding  provisions. 

6.  Claims  in  suit  in  any  other  court  at  the  time  of  the  commencement  of  the 
suit  before  the  Justice. 

9.  Of  Adjournments. 

2  Revised  Statutes,  335.  (Sec.  68)  At  the  time  of  the  return  of  eith.er  a  sum- 
mons or  attachment,  or  of  joining  issue  without  process,  a  Justice  may,  in  his  dis- 
cretion, and  with  or  without  the  consent  of  parlies,  adjourn  the  cause  not  exceeding 
eight  days. 

(^ec  69.)  A  Justice  shall  in  no  case  adjourn  a  cause  commenced  by  warrant,  on 
his  own  motion  ;  nor  shall  lie  exercise  that  right  in  a  suit  commenced  by  summons 
or  attachment  at  any  other  time  than  on  the  return  of  such  sumnions  or  attach- 
ment. 

(Sec.  70.)  At  the  time  of  the  return  of  a  summons  or  attachment,  or  the  join- 
incr  of  issue  without  process,  the  Justice  shall,  on  the  application  of  the  plaintiiF, 
adjourn  the  cause  to  some  time  to  be  fixed  by  the  Justice,  not  exceeding  eight  days 
thereafter.  But  such  adjournment  shall  not  be  granted,  unless  the  |)lairitifF  or  his 
attorney  shall,  if  required  by  the  defendant,  make  oath  that  he  cannot,  for  want  of 
some  material  testimony  or  witness  safely  to  proceed  to  trial. 

(.-^cc.  71.)  No  adjournment  of  a  cause  commenced  by  warrant,  issued  at  the  suit 
of  a  non-resident  plainiitF,  shall  be  allowed,  unless  in  the  following  cases: 

J.  On  the  consent  of  the  parties;  or 

2.  On  the  application  of  the  defendant,  supported  by  his  oath,  that  lie  has  a 
good  defence  to  the  action,  and  that  he  is  not  ready  to  proceed  to  the  trial  thereof; 
and  in  such  case  it  shall  not  be  granted,  unless  the  defendant  will  consent  that  any 
witness  on  the  part  of  the  plaintifT,  who  shall  be  then  attending,  may  be  then  ex- 
amined on  oath  by  such  Justice,  his  testimony  reduced  to  writing,  certified  by  the 
Justice,  and  left  with  him  to  be  read  on  the  trial  of  the  cause  ;  or 

3.  On  the  application  of  the  plaintiff,  supported  by  his  oath,  that  on  account  of 
the  absence  of  some  material  witness  or  testimony,  he  cannot  then  safely  proceed 
to  the  trial  of  the  cause. 

(Sec.  72.)  If  a  cause  commenced  by  warrant  be  adjourned  upon  the  application 
of  the  defendant,  he  shall  continue,  during  the  time  of  iidjournment,  in  the  custody 
of  the  constable,  unless  he  shall  give  the  security  hereinafter  directed  to  be  given 
in  cases  of  adjournment. 

(Sec.  7.<.)  If  such  cause  be  adjourned  on  the  consent  of  both  parties,  or  if  it  be 
adjourned  on  the  application  of  the  plaintifT,  the  defendant  shall  be  discharged  from 
custody;  but  the  cause  shall  not  be  discontinued  by  such  discharge  ;  and  at  the 
adjourned  day  the  same  proceedings  shall  be  had  as  on  the  return  of  a  summons 
personally  served. 

(Sec.  74.)  Tiie  first  adjournment  of  a  cause  commenced  by  warrant  shall  be  to 
a  day  not  less  than  three,  nor  more  than  twelve  days  thereafter,  unless  the  parties 
and  Justice  shall  otherwise  agree. 

(Sec.  75)  In  all  cases,  (other  than  where  the  suit  sliall  have  been  commenced 
by  warrai.t,  at  the  suit  of  a  non-resident  ]daintilT',)  the  cause  shall  be  adjourned  on 
the  application  of  (lie  defendant,  on  his  complying  with  the  following  requisitions: 

1.  'liie  application  must  he  made  at  liio  lime   of  joining  issue. 

2.  If  n  qiiired  hy  the  plaii.lill"  (jr  the  Jusiicc,  the  (K  leiuiant  shall  make  oath  that 
he  cannot  safi  ly  iirocced  to  trial,  lor  the  want  of  some  material  testimony  or  wit- 
ness, to  be  !pi  cificd  hy  him. 

3.  If  required  by  the  plaintilV,  he  siiall  give  security,  as  hereinafter  directed. 
Such  adjournment  shall  be  for  such  reasonable  time  as  will  enable  tiie  defendant 

to  procure  such  lehlimony  or  witness,  wol  exceeding  ninety  days. 

(Sec  7(J.)  In  nil  ca.seH,  a  deferdant  shall  also  bo  entitled  to  a  further  adjourn- 
ment, upon  giving  security,  if  required,  as  is  directed  in  the   next  succeeding  sec- 


APPENDIX.  G45 

tiou,  ami  upon  jiroving,  by  lii-i  own  oath,  or  otlicrwise,  to  the  satisfaction  of  tiie  Jus- 
tice, liiat  lie  cannot  safely  proceed  to  trial  for  the  want  of  some  material  testimony 
or  witness,  and  that  he  has  used  due  diligence  to  ohtain  such  tesiimony  or  witness. 

(Sec.  77  ;  Tlie  security  requireci  by  any  of  the  preceding  sections  to  be  given 
by  a  defendant,  shall  be  a  bond,  in  the  penalty  of  one  hundred  dollars,  to  the  plaiii- 
tifFin  the  action,  with  such  surety  as  the  Justice  sshall  approve,  conditioned  that  in 
case  judjrinent  shall  be  given  against  such  defendant,  at  the  adjourned  day,  or  at 
anytime  thereafter,  and  execution  be  issued  against  his  person,  he  will  render  him- 
self, upon  such  executon,  before  the  return  thereof;  or  in  default  thereof,  that  he 
or  his  surety  will  pay  the  judgment  so  recovered,  with  interest  ;  but  if  any  bond 
shall  have  been  given  upon  any  prior  adjournment,  it  shall  not  be  necessary  to  ex- 
ecute a  new  bond  upon  u  subsequent  adjournment,  unless  such  bond  be  required 
by  the  Justice,  or  by  the  bail  of  such  defendant  in  such  prior  bond. 

(Sec.  78.)  In  any  suit  brought  upon  such  bond,  the  plaintiff  shall  not  be  entitled 
to  recover,  unless  he  shows  an  execution  upon  a  judgment  obtained  in  tlie  suit  in 
which  such  adjournment  vi'as  had,  duly  issued  within  ten  days  after  the  time  when, 
by  law,  the  same  could  be  issued  against  the  person  of  the  del'endant,  and  a  return 
thereon  that  such  defendant  could  not  be  found. 

(Sec.  79  )  No  adjournment  shall  be  allowed  without  the  agreement  of  the  par- 
lies to  a  time  beyond  ninety  days  from  the  joining  of  the  issue  in  the  suit. 

(Sec.  bO.)  No  adjournment  shall  be  allowed  in  any  case  to  a  party  applying 
therefor,  who  shall  have  seen  the  account  or  demand  of  the  opposite  party,  unless 
such  applicant,  if  required,  shall  exhibit  his  account  or  demand,  or  state  the  nature 
thereof,  as  far  forth  as  may  be  in  his  power,  to  tlie  satisfaction  of  the  Justice. 

10.  Of  Compelling  tTie  Attendance  of  Witnesses. 

2  Revised  Statutes,  337.  (Sec.  81.)  Aisy  Justice  of  the  Peace  may  issue  sub- 
poenas to  compel  the  attendance  of  witnesses  to  give  evidence  on  any  trial  depend- 
ing before  himself,  or  any  other  Justice.  Such  subpoena  shall  be  valid  to  compel 
the  attendance  of  a  witness  being  in  the  same  county  where  the  cause  is  to  be 
tried,  or  being  in  an  adjoining  county  ;  and  in  no  other  case. 

(Sec.  82  )  A  Justice  shall  not  issue  any  subpoena  to  compel  the  attendance  of 
witnesses  before  another  Justice  in  any  suit,  unless  the  person  applying  shall  prove, 
by  his  own  oath,  or  the  oath  of  some  other  person,  that  such  suit  is  actually  de- 
pending before  such  other  Justice. 

(Sec  83  )  A  subpoena  may  be  served  either  by  a  constable  or  any  other  person  ; 
and  it  shall  be  served  by  reading  the  same,  or  stating  the  contents  to  the  witness, 
and  by  paying  or  tendering  the  fees  allowed  by  law  for  one  day's  attendance  of 
such  w  tness 

(Sec.  84.)  Whenever  it  shall  appear,  to  the  satisfaction  of  the  Justice,  by  proof 
made  before  him,  that  any  person  duly  subpoenaed  to  appear  before  him  in  any 
cause,  shill  have  refused  or  neglected,  without  just  cause,  to  attend  as  a  witness, 
in  conformity  to  such  subpoena,  and  the  party  in  whose  behalf  such  witness  shall 
have  been  subpoenaed  shall  make  oath  that  the  testimony  of  such  witness  is  ma- 
terial, the  Justice  shall  have  power  to  issue  an  attachment  to  compel  the  attend- 
ance of  such  witness.  [The  proof  required  to  obtain  an  attachment  for  a  vi'itness 
in  any  suit  before  a  Justice  of  the  Peace,  by  section  eighty-three  of  chapter  second, 
part  third,  of  the  Revised  Statutes,  may  be  made  by  the  affidavit  of  the  party  in 
the  suit  applying  for  such  attachment,  or  by  other  competent  testimony,  to  the 
satisfaction  of  the  Justice  before  whom  such  suit  is  pending.] 

(Sec.  85  )  Every  such  attachment  shall  be  executed  in  the  same  manner  as  a 
warrant ;  and  the  fees  of  the  officers  for  issuing  and  serving  the  same  shall  be  paid 
by  the  person  against  whom  the  same  shall  have  been  issued,  unless  he  shall  show 
reasonable  cause,  to  the  satisfaction  of  the  Justice,  for  his  omission  to  attend  ;  in 
which  case,  the  party  requiring  such  attachment  shall  pay  all  costs  of  such  attach- 
ment, and  the  service  of  the  .same. 

(Sec.  86.)  Every  person  duly  subpcenaed  as  a  witness,  who  shall  not  appear,  or 
appearing,  shall  refuse  to  testify,  shill  forfeit,  for  the  use  of  the  poor  of  the  town, 
for  every  such  non-appearance  or  refusal,  (unless  some  reasonable  cause  or  excuse 
shall  be  shown,  on  his  oath,  or  the  oath  of  some  other  person,)  such  fine,  not  less 
than  sixty-two  cents,  nor  more  than  ten  dollars,  as  the  Justice  before  whom  prose- 
cution therefor  shall  be  had,  shall  think  reasonable  to  impose. 


646  APPENDIX. 

(Sec.  87.)  Such  fine  may  be  imposed  by  the  Justice,  if  the  witness  be  present, 
and  iiave  an  opportunity  of  being  heard  against  the  imposition  thereof. 

(Sec.  b8.)  The  Justice  imposing  any  fine  shall  make  up  and  enter  in  his  docket 
a  minute  of  the  conviction,  and  of  the  cause  thereof,  and  the  same  shall  be  deemed 
a  judgment,  in  all  respects,  at  the  suit  of  the  overseers  of  the  poor  of  the  town. 

(Sec.  b9.)  Upon  the  impo.-ition  of  such  fine,  and  in  default  of  payment  thereof, 
with  costs,  the  Justice  slmll  forthwith  issue  an  execution  to  any  constable  of  the 
county,  directing  him  to  levy  such  fine,  with  costs,  of  the  goods  and  chattels  of  the 
delinquent, — and  for  want  thereof,  to  take  and  convey  him  to  the  jail  of  the  county, 
there  to  remain  until  he  shall  pay  such  fine  and  costs  ;  and  the  keeper  of  such  jail 
is  hereby  required  to  keep  such  delinquent  in  close  custody  in  such  jail,  until  the 
fine  and  costs  be  paid  ;  but  such  imprisonment  shall  not  exceed  thirty  days. 

(Sec.  90.)  When  the  money  shall  be  collected  on  such  execution,  the  constable 
shall  return  the  same  to  the  Justice,  and  such  Justice  shall  pay  over  the  amount  of 
the  fine  impo.-ed  to  the  overseers  of  the  poor  of  the  town,  for  the  use  of  the  poor. 

(Sec  91.)  Every  person  subpoenaed,  as  aforesaid,  and  neglecting  or  refusing  to 
appear  or  testify,  shall  also  be  liable  to  the  party  in  whose  behalf  he  shall  have 
been  subpoenaed,  for  all  damages  which  such  party  shall  sustain  by  reason  of  such 
non  appearance  or  refusal. 

11.   Examination  of  Witnesses. 

Code.  (Sec.  398.)  No  person  ofiered  as  a  witness  shall  be  excluded  by  reason  of 
his  interest  in  the  event  of  the  action. 

(Sec  399.)  The  last  section  shall  not  apply  to  a  parly  to  the  action,  nor  to  any 
person  for  whose  immediate  benefit  it  is  prosecuted  or  defended,  nor  to  any  assignor 
of  a  thing  in  action,  assigned  for  the  purpose  of  making  him  a  witness. 

12.  Examination  of  Parties. 

Code.  (.Sec.  390.)  A  party  to  an  action  may  be  examined  as  a  witness,  at  the 
instance  of  the  adverse  party,  or  of  any  one  of  several  adverse  parties,  and  for  that 
purpose  may  be  compelled  in  the  same  manner,  and  subject  to  the  same  rules  of 
examination  as  any  other  witness  to  testify,  eitlier  at  the  trial  or  conditionally,  or 
upon  commission. 

(Sec.  391.)  The  examination,  instead  of  being  !iad  at  the  trial,  as  provided  in  the 
last  section,  may  be  had  at  any  time  before  the  trial,  at  the  option  of  the  party 
claiming  it,  before  a  judge  of  the  court  or  a  county  judge,  on  a  previous  notice  to 
the  parly  to  be  examined,  and  any  other  adverse  party,  of  at  least  five  days,  un- 
less, for  good  cause  shown,  the  judge  order  otherwise.  But  the  party  to  be  exam- 
ined shall  not  be  compelled  to  attend  in  any  other  county  than  that  of  his  residence, 
or  where  he  may  be  served  with  a  summons  for  his  attendance. 

(Sec.  392.)  The  party  to  be  examined,  as  in  the  last  section  provided,  may  be 
com[)elled  to  attend  in  the  same  manner  as  a  witness  who  is  to  be  examined  condi- 
tionally ;  and  the  examination  shall  be  taken  and  filed  by  the  judge  in  like  man- 
lier, and  may  bo  read  by  either  party  on  the  trial. 

(Sec.  3.93.)  The  examination  of  the  party,  thus  taken,  may  be  rebutted  by  ad- 
verse testimony. 

(Sec.  394.)  If  a  party  refuse  to  attend  and  testify,  as  in  the  last  four  sections 
provided,  he  may  be  punished  as  for  a  conteinptj  and  his  complaint,  answer,  or  re- 
ply, may  be  stricken  out. 

(Sec.  39.5  )  A  party  examined  by  an  adverse  ])arty,  as  in  this  chapter  provided, 
may  be  examined  on  his  own  behalf  in  res|iect  to  any  matter  [lertiiieut  to  the 
JBBUO.  But  if  he  testify  to  any  new  matter  not  responsive  to  the  inquiries  put  to 
liim  by  the  adverse  party,  or  necessary  to  explain  or  qualify  his  aiiwers  thereto,  or 
discharge,  wIk^ii  his  aiiswcr.s  would  charge  himself,  such  adverse  party  may  offer 
himself  as  a  witness  on  his  own  behalf  in  respect  to  such  new  matter,  and  shall  be 
80  received. 

(See  39fi.)  A  person  for  whose  immediate  bciicfil  the  action  i.f  [irosocuted  or  de- 
fended, though  tiol  a  party  to  the  action,  may  be  examined  as  a  witness  in  the  samo 
manner,  and  Hubject  to  the   samo   rules   of  examination  as  if   he  were  named  as  a 

^Sec.  397.)  A  party  may  bo  examined  on  behalf  of  his  co-plaintiff,  or  a  co-de- 
feudunt ;  but  the  examiiialiuii  thus  taken  Mhall   not   bo  used  on  behalf  of  the  party 


APPENDIX.  647 

examined.  And  wlienever,  in  the  case  mentioned  in  sections  ."iOO  and  391,  one  of 
several  ()lainliffs  or  defenduntH,  wlio  are  joint  contractors,  or  are  united  in  interest, 
is  examined  by  tlie  adverse  party,  the  other  of  snch  plaintiffs  or  defendants  may 
offer  themselves  as  witnesses  to  the  same  cause  of  action  or  defence,  and  shall  be 
so  received. 

13.  Admission  or  Inf>pecf.ion  of  Writings-'^' 

Code.  (Sec.  388.)  Either  party  may  exhibit  to  the  other,  or  to  his  attorney,  at 
any  time  before  the  trial,  any  paper  material  to  the  action,  and  request  an  adiiiis- 
fion  in  writing  of  its  jjenuineness.  If  the  adverse  party,  or  his  attorney,  fail  to 
give  the  admission  within  four  days  after  the  request  ;  and  if  the  party  exhibiting 
the  paper  be  afterwards  put  to  expense  in  order  to  prove  its  genuineness,  and  the 
same  be  finally  proved  or  adaiitied  on  the  trial,  snch  expense,  to  be  ascertained  at 
the  trial,  shall  bo  paid  by  the  [larty  refusing  the  admission,  unle.ss  it  appear,  to  the 
satisfaction  of  the  court,  that  there  were  good  reasons  for  the  refusal.  The  court 
before  wliich  an  action  is  pending,  or  a  judge  or  Justice  thereof,  may,  in  their  dis- 
cretion, and  u|)on  due  notice,  order  either  party  to  give  to  the  other,  within  a  spe- 
cified time,  an  inspection  and  copy,  or  permission  to  take  a  copy,  of  any  books, 
papers,  and  documents  in  his  possession  or  under  his  control,  containing  evidence 
relating  to  the  merits  of  the  action,  or  the  defence  therein.  If  compliance  with  the 
order  be  refused,  the  court,  on  motion,  may  exclude  the  paper  from  being  given 
in  evidence,  or  punish  the  party  refusing,  or  both.* 

14.  Of  the  Trial  of  Issues  of  Fact,  and  the  Incidents  thereto. 

Code  (Sec.  248.)  Issues  arise  upon  the  pleadings  when  a  fact  or  conclusion  of 
law  is  maintained  by  the  one  party,  and  controverted  by  the  other.  They  are  of 
two  kinds: 

1.  Of  law  ;  and 

2.  Of  fact. 

(Sec.  332.)  A  trial  is  the  judicial  examination  of  the  issues  between  the  parties, 
whether  they  be  issues  of  law  or  of  fact. 

2  Revised  Statutes,  339.  (Sec.  92.)  Whenever  issue  shall  have  been  joined  in  a 
suit,  before  a  Justice,  if  no  jury  shall  have  been  demanded  by  cither  party,  the  Justice 
shall  proceed  to  try  snch  issue,  to  hear  the  proofs  and  allegations  of  the  parties,  and 
to  determine  the  same,  according  to  law  and  equity,  as  the  very  right  of  the  case 
may  appear. 

(Sec.  93.)  Whenever  a  defendant,  wlio  has  been  personally  served  with  a  sum- 
mons, or  who  shall  have  procured  an  adjournment  without  having  joined  issue, 
shall  neglect  to  appear  and  join  issue,  the  Justice  sliall  proceed  to  hear  the  proofs 
and  allegations  of  tlie  plainlifF,  and  determine  the  same,  as  above  prescribed. 

(Sec.  94.)  After  issue  joined,  and  before  the  Justice  shall  proceed  to  an  investi- 
gation of  the  merits  of  the  cause,  by  an  examination  of  a  witness,  or  the  hearing 
of  any  other  testimony,  either  of  the  parties,  or  the  attorney  of  either  of  them, 
may  demand  of  the  Justice  that  the  cau.se  be  tried  by  a  jury. 

(Sec.  95.)  Upon  the  demand  of  a  trial  by  jury,  the  Justice  shall  issue  a  venire 
directed  to  any  constable  of  the  county  wherein  the  cause  is  to  be  tried,  command- 
ing him  to  summon  twelve  good  and  lawful  men,  in  the  town  where  such  Justice 
resides,  qualified  to  serve  as  jurors,  and  not  exempt  from  serving  on  juries  in  courts 
of  record,  who  shall  be  in  no  wise  of  kin  to  the  plaintiff  or  defendant,  nor  interested 
in  snch  suit,  to  appear  before  snch  Justice  at  a  time  and  place  to  be  named  therein, 
to  make  a  jury  for  the  trial  of  the  action  between  the  parties  named  in  such 
venire. 

(Sec.  9G.)  The  parties  may  agree  upon  any  number  of  jurors  less  than  six,  to 
try  the  cause  ;  and  the  Justice  shall  direct,  in  the  venire,  the  summoning  of  so 
many  juror.s  as  shall  be  double  the  number  so  agreed  upon. 

(Sec.  97.)  If  the  action  in  which  such  issue  shall  be  joined  be  between  two 
towns,  the  venire  shall  direct  the  constable  to  summon  twelve  good  and  lawful  men 

'  It  will  be  perceived  that  this  and  the  next  preceding  title  are  mainly  applicable  to  courts  of 
record. 


648  APPENDIX. 

of  the  comity,  qualified  and    not  exfmpt,  and  not  interested,  as  herein  before  pro- 
vided, to  make  a  jury  for  tlie  trial  of  sucli  action. 

(Sec  98.)  The  Justice  issuinfr  a  venire  sliail  deliver,  or  cause  the  same  to  be  de- 
livered, to  some  constable  of  the  county  disinterebted  between  the  parties,  and 
against  whom  no  reasonable  objection  shall  have  been  made  by  either  party. 

(Sec.  99.)  The  constable  to  whom  any  veniie  shall  be  delivered,  shall  exe- 
cute the  same  fairly  and  impartially,  and  shall  not  summon  any  person  whom 
he  has  reason  to  believe  biassed  or  prejudiced  for  or  against  either  of  the  parties. 
He  shall  summon  the  jurors  personally,  and  shall  make  a  list  of  the  persons  sum- 
moned, which  he  sliall  certify  and  annex  to  the  venire,  and  return  to  the  Justice. 

(Sec.  100.)  At  the  trial  of  the  cause,  the  names  of  the  persons  so  returned,  and 
who  shall  appear,  shall  be  respectively  written  on  several  and  distinct  pieces  of  pa- 
per as  nearly  of  one  size  as  may  be  ;  and  the  constable,  in  the  presence  of  the  Jus- 
tice, shall  roll  up  or  fold  such  pieces  of  paper,  as  nearly  as  may  be,  in  the  same 
manner,  and  put  them  together  in  a  box  or  some  convenient  thing. 

(Sec.  101)  The  Justice  shall  then  draw  out  six  (or  such  number  as  the  parties 
may  have  agreed  upon)  of  such  papers,  one  after  another;  and  if  any  of  the  per- 
sons whose  names  shall  be  so  drawn  shall  be  challenged  and  set  aside,  then  such 
further  number  shall  be  drawn  as  will  make  up  the  number  required,  after  all  legal 
causes  of  challenge  allowed  by  the  Justice.  The  persons  so  drawn,  appearing  and 
approved  as  iiidiflerent.  shall  compose  the  jury  to  try  the  cause. 

(Sec.  102.)  If  a  sufficient  number  of  competent  jurors  shall  not  be  drawn,  the 
Justice  may  supply  the  deficiency  by  directing  the  constable  to  summon  any  of  the 
bystanders  or  others  who  may  be  competent,  and  against  whom  no  cause  of  chal- 
lenge shall  appear,  to  act  as  jurors  in  the  cause. 

(Sec.  103.)  If  the  constable,  to  whom  the  venire  shall  have  been  delivered,  do 
not  return  the  same  as  thereby  required,  or  if  a  full  jury  shall  not  be  obtained 
in  the  manner  declared  in  the  preceding  sections,  the  Justice  shall  issue  a  new 
venire. 

(Sec.  104  )  To  each  juror  the  Justice  shall   administer  an   oath   or   affirmation, 

well  and  truly|to  try  the  matter  in  difference  between ,  plaintiff,  and  , 

defendant,  and,  unless   discharged  by  the  Justice,  a  true  verdict  give,  according  to 
evidence. 

(Sec.  105.)  After  the  jury  shall  be  duly  sworn,  they  shall  sit  together,  and  hear 
the  proofs  and  allegations  of  the  parties,  which  shall  be  delivered  publicly  in  their 
presence. 

(Sec.  106.)  No  ex  jxirte  affidavit  of  any  person  shall  be  allowed  or  given  in  evi- 
dence on  any  trial,  either  with  or  without  a  jury,  unless  the  parties  agree  to  allow 
the  same. 

(Sec.  107.)  A  party  in  the  suit,  or  having  an  interest  in  the  verdict,  may  be  a 
witness  to  prove  the  death  or  absence,  beyond  the  reach  of  a  subpoena  of  the  Jus- 
tice, of  a  subscribing  witness  to,  or  the  loss  of  any  instrument  which  shall  come  in 
question  on  the  trial,  in  order  to  introduce  other  proof  of  the  execution  or  contents 
of  such  instrument, — but  in  no  other  case,  without  the  consent  of  the  parlies. 

(Sec.  108.)  If  a  witness,  on  being  produced,  shall  be  objected  to  as  incompetent, 
such  objection  shall  be  tried  and  determined  by  the  Justice.  Evidence  may  be 
given  in  support  of,  or  against  such  objection,  as  in  other  cases  ;  or  the  proposed 
witness  may  be  examined  on  oath  by  the  party  objecting, — and  if  so  examined,  no 
other  testimony  shall  be  received  from  either  party  as  to  the  competency  of  such 
witness. 

(Sec.  109.)  Every  per.son  offered  as  a  witness,  before  any  testimony  be  given  by 
him,  shall  be  duly  sworn  or  affirmed,  that  the  evidence  he  shall  give  relating  to  the 

matter   in   difference  between ,  plaintiff,  and  ,  defendant,  shall  be  the 

truth,  the  whole  truth,  and  nothing  but  the  truth. 

(.Sec.  110)  After  hearing  the  proofs  and  allegations,  the  jury  shall  be  kept  to- 
gether in  some  convenient  place,  under  the  charge  of  a  constable,  until  they  all 
agree  upon  tlieir  verdict;  and  for  that  purpose,  the  Justice  shall  administer  to  such 
constable  the  following  oath  :  "  Yon  swear,  in  the  presence  of  Almighty  (Jod,  that 
you  will,  to  the  utmost  of  your  ability,  keep  the  [jcrsons  sworn  tis  jurors  on  this 
trial  together,  in  sonie  private  and  convenient  |/lac?,  without  any  meat  or  drink, 
except  sncli  »»  hIiuII  be  ordered  by  me  ;  that  yon  will  not  suiler  any  cominunica- 
tion,  firally  or  otherwise,  to  be  niiido  to  tbein  ;  that  you  will  not  communicate 
with  thorn  yourself,  orally  or  oiherwise,  imicss  by  my  order,  or  to  ask  them  whether 
they  have   agreed  on  their  verdict,  inilil   they  shall    be  discharged  ;   and   that  you 


APPENDIX.  649 

will  not,  before  lliey  rentier  llieir  verdict,  communicate  to  any  person  the  state  of 
their  deliberations  or  the  verdict  they  have  agreed  on." 

(Sec.  111.)  When  the  jurors  have  agreed  on  their  verdict,  they  shall  deliver  the 
same  to  the  Justice  publicly,  who  sh.ill  enter  it  in  his  docket.  Previous  to  receiv- 
ino-  it,  the  Justice  s'all  call  the  plaintiff.  If  he  be  absent,  and  iio  one  appear  for 
him,  the  verdict  shall  not  be  received. 

(Sec.  112)  Whenever  a  Justice  shall  be  satisfied  that  a  jury,  sworn  in  any  cause 
before  him,  cannot  agree  on  their  verdict,  after  having  been  out  a  reasonable  time, 
he  may  discharge  them,  and  shall  issue  a  new  venire,  returnable  within  forty-eight 
hours,  unless  the  parties  shall  have  consented  that  the  Justice  may  render  judg- 
ment on  the  evidence  already  before  him,  which,  in  such  cases,  he  may  do. 

(Sec.  113.)  Every  person  who  sliall  be  duly  summoned  as  a  juror,  and  shall  not 
appear,  nor  render  a  reasonable  excuse  for  his  default — or  appearing,  shall  refuse  to 
serve — shall  be  .subject  to  the  same  fine  ;  (o  be  pro.secuted  for,  and  collected,  with 
costs,  in  the  same  manner,  and  applied  to  the  same  use  as  hereinbefore  provided  in 
respect  to  a  person  subpoenaed  as  a  witness,  and  not  appearing, — or  appearing,  and 
refusing  to  testify. 

15.  Of  Judgments,  and  filing  Transcripts  thereof 

Code.  (Sec.  24.5.)  A  judgment  is  the  final  determination  of  the  rights  of  the 
parties  in  the  action. 

2  Revised  Statutes,  341.  (Sec  114.)  A  Justice  of  the  Peace  may  enter  a  judg- 
ment, by  confession  of  the  defendant,  in  any  case  where  the  debt  or  damages  con- 
fessed shall  not  exceed  two  hundred  and  fifty  dollars,  with  such  stay  of  execution 
as  may  be  agreed  by  the  parties  interested  in  such  judgment. 

(Sec  115.)  No  confession  shall  be  taken,  or  judgment  rendered  thereon,  unless 
the  following  requisites  be  complied  with  : 

1.  The  defendant  must  personally  appear  before  the  Justice. 

9.  The  confession  shall  be  in  writing,  signed  by  the  defendant,  and  filed  with  the 
Justice. 

3.  If  the  judgment  be  confessed  for  a  sum  exceeding  fifty  dollars,  the  confession 
shall  be  accompanied  by  the  affidavit  of  the  defendant  and  plaintiff,  stating  that 
such  defendant  is  honestly  and  justly  indebted  to  the  plaintiff  in  the  sum  named  in 
such  affidavit,  over  and  above  all  just  demands  which  he  has  against  him,  and  that 
such  confession  is  not  made  or  taken  with  a  view  to  defraud  any  creditor. 

(Sec.  116.)  Every  judgment  confessed  without  a  compliance  with  the  provisions 
of  the  last  preceding  section,  shall  be  void  as  against  all  persons,  except  a  pur- 
chaser, in  good  faith,  of  any  goods  or  chattels,  lands  or  tenements,  under  such  judg- 
ment, and  except  the  defendant  making  such  confession. 

(Sec.  117.)  Any  judge  of  the  county  may,  on  the  application  of  any  creditor 
of  the  person  against  whom  any  jud^jment  shall  have  been  recovered,  upon  con- 
fession, or  otherwise,  that  shall  be  a  lien  on  tht^'real  estate  of  the  defendant,  upon 
sufficient  cause  shown  by  affidavit  that  such  judgment  was  obtained  fraudulently, 
with  intent  to  defraud  creditors,  grant  an  order  to  stay  all  proceedings  on  taich 
judgments,  until  the  further  order  of  the  county  court;  and  that  court  shall  have 
the  like  power  to  inquire  into  the  consideration  of  such  judgment,  and  to  set  aside 
the  same,  or  to  make  any  other  order  in  the  premises,  as  if  the  judgment  had  been 
originally  rendered  in  that  court. 

(Sec.  118)  If  an  execution  shall  have  been  issued  on  such  judgment,  and  the 
judgment  be  established,  the  officer  having  such  execution  may  proceed  thereon  to 
collect  the  amount  of  such  judgment  in  the  same  manner  as  if  the  proceedings  had 
not  been  stayed,  and  within  such  time  as  the  court  shall  direct. 

(Sec.  118.)  If,  previous  to  joining  issue  in  any  cause,  (except  where  the  defend- 
ant shall  have  been  arrested  by  warrant,)  the  defendant  shall  make  affidavit  that 
the  Justice  before  whom  the  same  is  pending  is  a  material  witness  for  such  defend- 
ant, without  whose  testimony  he  cannot  safely  proceed  to  the  trial,  judgment  of 
discontinuance  shall  be  entered,  but  without  costs,  against  either  party. 

(Sec.  120.)  Judgment  of  nonsuit,  with  costs,  shall  be  rendered  against  a  plain- 
tiff prosecuting  a  suit  before  a  Justice  of  the  Peace,  in  the  following  cases  : 

1.  If  he  discontinue  or  withdraw  his  action. 

2.  If  he  fail  to  appear  on  the  return  of  any  process,  within  one  hour  after  the 
same  was  returnable. 


650  APPENDIX. 

3.  If,  after  an  adjournment,  he  fail  to  appear  within  one  liour  after  the  time  to 
which  the  atljouinment  shall  have  been  made. 

4.  If  he  become  nonsuited  on  the  trial. 

5.  If  he  shall  not  appear  on  the  coming  in  of  the  jury  to  lieur  their  verdict. 
(Sec.  121.)  Judgment  for  the  defendant,  with   cost.',  .'•hall  be  rendered  whenever 

a  trial  has  been  had,  and  it  be  found  by  verdict,  or  by  the  decision  of  the  Justice, 
that  the  plaintiff  has  no  cause  of  action  against  the  defendant. 

(Sec.  122. )  If,  upon  the  trial  of  the  cause,  or  upon  an  ex  parte  hearing,  in  those 
cases  where  it  may  be  had  upon  the  defendants  failing  to  appear,  a  sum,  in  debt  or 
damages,  shall  be  found  in  favor  of  the  plaintiff,  then  judgment  shall  be  rendered 
against  the  defendant  for  such  debt  or  damages,  and  the  costs. 

'Sec  123.)  If  process  shall  have  issued  against  two  or  more  persons  jointly 
indebted,  and  shall  have  been  personally  served  upon  either  of  the  defendants,  the 
defendant  who  may  have  been  served  with  process  shall  answer  to  the  plaintiff; 
and  the  judgment  in  such  case,  if  rendered  in  favor  of  the  plaintiff,  shall  be  against 
all  the  defendants  in  the  same  manner  as  if  all  had  been  served  with  proce.ss  ;  but 
execution  shall  issue  only  in  the  manner  hereinafter  directed. 

(Sec.  124  )  Such  judgment  shall  be  conclusive  evidence  of  the  liability  of  the 
defendant  who  was  personally  served  with  process  in  the  suit,  or  who  appeared 
therein  ;  but  against  every  other  defendant,  it  shall  be  evidence  only  of  the  extent 
of  the  plaintiff's  demand  after  the  liability  of  such  defendant  shall  have  been  esta- 
blished by  other  evidence. 

(Sec.  125.)  In  cases  where  the  plaintiffshall  be  nonsuited,  discontinue,  or  with- 
draw his  action,  and  where  judgment  shall  be  confessed,  and  in  all  cases  where  a 
verdict  shall  be  rendered,  or  the  tefendant  shall  be  in  custody  at  the  time  of  the 
hearing  of  the  cause,  the  Justice  shall  forthwith  render  judgment,  and  enter  the 
same  in  his  docket.  In  all  other  cases,  he  shall  render  judgment,  and  enter  the 
same  in  his  docket,  within  four  days  after  the  cause  shall  have  been  submitted  to 
hiin  for  his  final  decision. 

(Sec.  12G.)  When  a  balance  shall  be  found  in  favor  of  a  party,  either  by  the  ver- 
dict of  a  jury,  or  upon  a  hearing  before  the  justice,  exceeding  the  sum  for  which 
the  justice  is  authorized  to  give  judgment,  such  party  may  remit,  and  release  the 
excess,  and  may  take  judgment  for  the  residue. 

(Sec.  127.)  Whenever  a  judgment  shall  be  rendered  by  a  justice  against  any 
party,  unless  herein  otherwise  provided,  it  shall  be  with  the  costs  of  the  suit.  But 
the  whole  amount  of  all  the  items  of  such  costs,  except  charges  for  the  attendance 
of  witnesses  from  another  county,  shall  not,  in  any  case,  exceed  five  dollars. 

Code  (Sec.  63.)  A  justice  of  the  peace,  on  the  demand  of  a  party  in  whose 
favor  he  shall  have  rendered  a  judgment,  shall  give  a  transcript  thereof,  which  may 
be  filed  and  docketed  in  the  othce  of  the  clerk  of  the  county,  where  the  judgment 
was  rendered.  The  time  of  the  receipt  of  the  transcript  by  tlie  clerk,  shall  he  noted 
thereon,  and  entered  in  the  docket ;  and,  from  that  time,  the  judgment  shall  be  a 
judgment  of  the  county  court.  A  certified  transcript  of  such  judgment  may  be  filed 
and  docketed  in  the  clerk's  office  of  any  other  county,  and  with  the  like  effect  in 
every  respect  as  in  the  county  where  the  judgment  was  rendered;  except  that  it 
shall  be  a  lien  only  from  the  time  of  filing  and  docketing  the  transcript.  IJut  no 
such  judgment  for  a  less  sum  than  twenty-five  dollars,  exclusive  of  costs,  hereafter 
docketed,  shall  be  a  lien  upon,  or  enforced  against  real  property. 

IG.   Of  Executions. 

2  Revised  Stati;tks,  315.  (Sec.  133.)  Upon  any  judgment  being  rendered 
before  a  ju.sticc,  ho  shall  issue  execution  at  the  time  and  m  the  manner  hereinafter 
prescribed. 

(Sec.  VM.)  It  .shall  Ix-  directed  to  any  constable  wilhiu  the  same  county,  and 
Bhall  command  him  to  levy  the  debt  or  damages,  and  costs,  of  the  goods  and  chattels 
of  the  person  against  whom  the  same  shall  be  issued,  (excepting  such  goiuls  and 
chatlelH  as  are  by  law  exeni|iled  from  execution,)  and  to  bring  the  money  at  a  cer- 
tain lime  and  ])lacu  therein  to  be  mentioned,  before  such  ju.stice,  to  render  to  the 
parly  wlio  recovered  the  same  ;  and  if  execution  bo  isHUed  against  a  male  person, 
it  Hliall  command  the  couKt.ililo  that  if  no  goods  or  chattels  can  be  found,  or  not 
Bulficient  to  satisfy  sueli  execution,  to  take  the  body  of  the  person  against  whom 


APPENDIX.  651 

the  execution  sliall  be  issued,  and  convoy  him  to  (lie  common  jail  of  the  county, 
there  to  reniuin  until  such  execution  shall  be  satisfied  and  |)aid. 

(Sec.  141  )  When  a  judgment  shall  be  obtained  against  joint  debtors,  upon  pro- 
cess  which  was  not  served  upon  all  the  defendants,  execution  may  bo  issued  in  form 
against  all  ;  but  the  justice  shall  indorse  thereon  the  names  of  sucii  of  the  defen- 
dants wlio  did  not  appear  in  ihe  suit,  as  were  not  served  with  process  of  warrant, 
summons,  or  attachment. 

(Sec.  142.)  Such  execution  shall  not  be  served  upon  the  persons  of  the  defendants 
whose  names  are  so  indorsed  thereon  ;  nor  shall  it  be  levied  on  the  sole  properly  of 
any  such  defendant ;  but  it  maybe  collected  of  the  personal  property  of  any  such 
defendant,  owned  by  him  as  a  partner  of  the  other  defendants  appearing  or  served 
with  process,  or  with  any  of  thein. 

Code.  (Sec.  G4.)  Execution  may  be  issued  on  a  judgment  heretofore  or  hereafter 
rendered  in  a  justice's  court,  at  any  time  within  five  years  after  the  rendition  thereof, 
and  shall  be  returnable  sixty  days  from  the  date  of  the  same. 

If  the  judgment  be  docketed  vi'itli  the  county  clerk,  the  execution  shall  be  issued 
by  him  to  the  sheriff  of  the  county,  and  have  the  same  eflect,  and  be  executed  in 
the  same  manner  as  other  executions  and  judgments  of  the  county  court,  except  as 
provided  in  section  G.3. 

2  Revised  Statutes,  346.  (Sec.  143  )  Whenever  any  recovery  shall  be  had 
before  a  justice  of  the  peace  for  any  penally  or  forfeiture  incurred  by  violating  any 
provision  contained  in  the  ninth  title  of  the  twentieth  chapter  of  the  first  part  of  the 
Revised  Statutes,  which  is  entitled,  "  Of  Excise,  and  the  regulation  of  taverns  and 
groceries  ;"  or  for  any  penalty  or  forfeiture  incurred  by  violating  any  provision  con- 
tained in  the  eleventh  title  of  the  same  chapter,  relating  to  fisheries,  execution  shall 
issue  thereon  immediately,  and  the  justice  shall  indorse  upon  such  execution,  the 
cause  for  which  such  judgment  was  rendered  ;  and  in  case  no  goods  or  chattels  can 
be  found  to  satisfy  such  execution,  the  constable  having  the  same  shall  commit 
such  defendant  to  the  jail  of  the  county,  and  shall  deliver  to  the  keeper  thereof  a 
certified  copy  of  such  execution  and  indorsement ;  by  virtue  of  which,  such  keeper 
shall  detain  such  defendant  for  a  period  not  exceeding  sixty  days,  without  allowing 
him  the  benefit  of  the  liberties  of  such  jail. 

(Sec.  145.)  If  any  execution  be  not  satisfied,  it  may,  from  time  to  time,  be  re- 
newed by  the  justice  issuing  the  same,  by  an  indorsement  thereon  to  that  effect, 
signed  by  him,  and  dated  when  the  same  shall  be  made.  If  any  part  of  such  exe- 
cution has  been  sati;;fied  the  indorsement  of  renewal  shall  express  the  sum  due  on 
the  execution. 

(Sec  147.)  If  an  execution  be  returned  unsatisfied,  in  whole  or  in  part,  a  further 
execution  for  the  amount  remaining  due  may  be  issued. 

(Sec.  148.)  The  constable  after  taking  goods  and  chattels  into  his  custody  by 
virtue  of  an  execution,  shall  indorse  thereon  the  time  of  levying  the  same,  and  im- 
mediately give  public  notice  by  advertisement,  signed  by  himself,  and  put  up  at 
three  public  places  in  the  city  or  town  where  such  goods  and  chattels  shall  be  taken, 
of  the  time  and  place  within  such  city  or  town,  when  and  where,  they  will  be  ex- 
posed to  sale.  Such  notice  shall  describe  the  goods  and  chattels  taken,  and  shall  be 
put  up  at  least  five  days  before  the  time  appointed  for  the  sale. 

(Sec.  149.)  At  the  time  and  place  so  appointed,  if  the  goods  and  chattels  be  pre- 
sent, and  pointed  out  to  the  inspection  and  examination  of  the  bidders,  the  constable 
shall  expose  them  to  sale,  at  vendue,  to  the  highest  bidder.  He  shall  return  the  ex- 
ecution and  pay  tlie  debt  or  damages,  and  costs  levied,  to  the  justice  who  isssued 
the  same,  returning  the  overplus,  if  any,  to  the  person  against  whom  the  execution 
issued. 

(Sec.  150.)  No  constable,  or  other  officer,  shall,  directly  or  indirectly,  purchase 
any  goods  or  chattels  at  any  sale  made  by  him  upon  execution  ;  but  any  such  pur- 
chase shall  be  absolutely  void. 

(Sec.  151.)  For  want  of  goods  and  chattels  whereon  to  levy,  the  constable  shall, 
in  the  cases  authorized  by  law,  if  the  execution  require  it,  take  the  body  of  the  per- 
son against  whom  the  execution  shall  have  issued,  and  convey  him  to  the  common 
jail  of  the  city  or  county,  the  keeper  whereof  is  hereby  required  to  keep  such  per- 
son in  safe  custody  in  jail,  until  the  debt,  or  damages,  and  costs  shall  be  paid,  or  he 
be  thence  discharged  by  due  course  of  law. 


652  APPENDIX. 

(Sec.  159.)  No  female  shall  be  arrested  or  imprisoned,  upon  any  execution  is.sued 
from  a  justice's  court. 

(Sec.  160 )  If  a  constable  neglect  to  return  an  execution  within  five  days  after 
the  re! urn  day  thereof,  the  party  in  who.se  favor  the  same  was  is^sued,  may  maintain 
•in  action  a;^ainst  such  constable,  and  shall  recover  therein  the  amount  of  the  exe- 
cution, with  interest  from  the  time  of  the  rendition  of  the  judgment  upon  whicii  the 
same  v^as  issued  ;  and  if  a  judg-inent  be  obtained  in  such  suit  against  the  constable, 
execution  shall  immediately  issue  thereon. 

(Sec.  161.)  A  constable  shall  not  be  liable  under  the  preceding  section,  for  not 
serving  and  returning  an  execution  upon  which  the  defendant's  exemj)tion  shall 
have  been  indorsed,  if  he  duly  collect  and  return  the  money  payable  by  instalments, 
or  return  the  execution  as  to  person  or  property,  not  found. 

(Sec  162.)  A  constable  shall  not  levy  upon  or  sell  any  property,  or  imprison  a 
defendant,  upon  any  execution,  after  the  time  limited  therein  for  its  return  ;  unless 
such  execution  shall  have  been  renewed.  Nor  shall  any  constable  do  any  act  under 
a  renewed  execution  after  the  expiration  of  the  time  or  times  for  which  the  same 
may  have  been  renewed. 

(Sec.  163.)  The  last  section  shall  not  apply  to  executions  upon  which  proceedings 
are  stayed  by  an  indorsement  of  the  defendant's  exemption,  on  the  payment  of 
monthly  instalments  ;  but  such  execution  maybe  collected  as  herein  before  pro- 
vided. 

(Sec.  164.)  If  moneys  be  collected  by  a  constable  upon  an  execution,  and  not 
paid  over  by  him  according  to  law,  an  action  may  be  maintained  by  the  party  en- 
titled to  such  money  in  his  own  name,  upon  the  instrument  of  security  given  by 
such  constable  and  his  sureties,  pursuant  to  the  provisions  of  the  second  article  of 
the  third  title  of  the  eleventh  chapter  of  the  first  part  of  the  Revised  IStatutes  ;  and 
in  such  suit  the  amount  so  collected,  with  interest  from  the  time  of  collection, 
shall  be  recovered.  Execution  simll  be  immediately  issued  upon  the  judgment  in 
such  suit 

(Sec.  165.)  Whenever  a  transcript  of  a  judgment  in  a  Justices'  Court  shall  have 
been  filed  and  docketed  by  the  clerk  of  the  county,  all  executions  thereon  shall  be 
issued  by  such  clerk,  under  the  seal  of  the  court  of  the  county  ;  and  the  power  and 
authority  of  the  Justice,  in  respect  to  such  judgment,  shall  cease. 

(Sec.  170)  The  following  property,  when  owned  by  any  person  being  a  house- 
holder, shall  be  exempt  from  levy  and  sale  under  any  execution  ;  and  such  articles 
thereof  as  are  moveable,  shall  continue  so  exempt,  while  the  family  of  such  jjcrson, 
or  any  of  them,  may  bo  removing  from  one  place  of  residence  to  another. 

1.  .All  spinning  wheels,  weaving  looms,  and  stoves  put  up  or  kept  for  use  by  the 
family. 

2.  The  family  bible,  family  pictures,  and  school  books,  used  by  or  in  the  family 
of  such  person  ;  ami  books  not  exceeding  in  value  fifty  dollars,  which  arc  kept  and 
used  as  part  of  the  family  library. 

.3.  A  seat  or  pew  occupied  by  such  person  or  his  family  in  any  house  or  place  of 
public  worship. 

4.  All  sheep  to  the  number  of  ten,  with  their  fleeces,  and  the  yarn,  or  cloth  man- 
ufactured from  the  satne  ;  one  cow,  two  swine,  tke  nece-ssary  food  for  them  ;  all 
necessary  pork,  beef,  fi.sh,  flour  and  vegetables  actually  provided  for  family  use, 
and  necessary  fuel  for  the  use  of  the  family,  for  sixty  days. 

5.  All  necessary  wearing  appurel,  beds,  bedsteads  and  bedding  for  such  person 
andjii-s  family;  arms  and  accoutrements  required  by  law  to  be  kejit  by  such  per- 
son ;  necessary  cooking  utensils;  one  table,  six  chairs,  six  knives  and  forks,  six 
plate.s,  six  tea  cups  and  saucers,  one  sugar  dish,  one  milk  pot.  one  tea  pot  and  six 
spoon.s,  one  crane  and  its  appendages,  one  pair  of  andirons,  and  a  shovel  and  tongs. 

6.  'I"he  tools  and  im|»leineiitH  of  any  mechanic  necessary  to  the  carrying  on  of 
his  trade:   hut  the  amount  thereof  shall  not  exceed  twenty-five  dollars  in  value. 

In  addition  to  the  artich's  now  exempt  by  law  from  distress  for  rent,  or  levy 
or  sale  under  execution,  there  shall  be  exempted  from  such  distress,  and  levy 
and  Hale,  necessary  household  furniture,  and  working  tools  and  team,  owned  by  any 
person  buing  a  liou.teliolder,  or  having  a  fimily  for  which  he  jirovides,  to  the  value 
of  not  exceeding  one  hundred  and  fifiy  dollar.s,  |)rovidi(l  that  such  exemption  shall 
not  extend  to  any  execution  issu'-d  on  a  demand  for  the  jiinrhasc  money  of  such 
furniture,  or  IooIh,  or  team,  or  articles  now  ciiunieiated  by  law.  [Laws,  lb42,  p. 
193,  sec.  1.] 


APPENDIX.  653 


17.  Of  Appeals. 

Code.  (Sec.  323.)  Wrils  of  error  in  civil  actions,  as  they  have  heretofore  existed, 
are  abolished,  and  the  only  mode  of  reviewing  a  judgment  or  order,  in  a  civil  ac- 
tion, shall  ho  that  prescribed  by  this  title. 

(Sec.  3:2().)  The  party  appealing  shall  be  known  as  the  appellant,  and  the  ad- 
verse party  as  the  respondent.  But  the  title  of  the  action  shall  not  be  changed  in 
consequence  of  the  ajjpeal. 

(Sec.  351.)  All  statutes  now  in  force  providing  for  the  review  of  judgments  in 
civil  cases  rendered  by  courts  of  Justices  of  the  Peace,  by  the  Marine  Court  of  the 
city  of  New  York,  by  the  Justices'  courts  in  the  city  of  New  York,  by  the  Muni- 
cipal Court  of  the  city  of  lirooklyn,  and  by  the  Justices'  courts  of  cities,  and  regu- 
lating the  practice  in  relation  to  such  review,  are  rc|)ealed  ;  and  hereafter,  the  only 
mode  of  reviewing  such  judgments  shall  be  an  appeal,  as  prescribed  by  this 
chapter. 

t^Sec.  352.)  When  the  judgment  shall  have  been  rendered  by  the  Marine  Court 
of  the  city  of  New  York,  or  by  a  Justice's  court  in  that  city,  the  appeal  .shall  be 
to  the  Court  of  Common  Pleas  for  the  city  and  county  of  New  York  ;  and  when 
rendered  by  any  of  the  other  courts  enumerated  in  the  last  section,  to  the  county 
court  of  the  county  where  the  judgment  was  rendered. 

(Sec.  353  )  The  appellant  shall,  within  twenty  days  after  the  judgment,  make, 
or  cause  to  be  made,  an  affidavit,  stating  the  substance  of  the  testimony  and  pro- 
ceedings before  the  court  below,  and  the  grounds  upon  wliich  the  a])peal  is  founded. 

(Sec.  354.)  A  copy  of  the  atTidavit,  and  a  notice  of  appeal,  shall,  within  the 
same  time,  be  served  on  the  Justice  and  on  the  respondent,  if  he  be  a  resident  of 
the  city  or  county,  personally,  or  by  leaving  it  at  his  residence  with  some  person  of 
suitable  age  and  discretion — or,  if  he  be  not  a  resident,  on  the  attorney  or  agent,  if 
any,  wiio  is  a  resident  of  such  city  or  county,  who  appeared  for  him  on  the  trial. 

(See.  355.)  if  the  appellant  desire  a  stay  of  execution  of  the  judgment,  he  shall 
give  security  as  provided  in  the  next_section. 

(Sec.  35(5.)  'I'lie  security  shall  be  a  written  undertaking,  executed  by  one  or 
more  sufficient  sureties,  approved  by  the  county  judge,  or  by  the  court  below,  to 
the  etTect  that  if  judgment  be  rendered  against  the  appellant,  and  execution  thereon 
be  returned  unsatislied  in  whole  or  in  part,  the  sureties  will  pay  the  amount  unsat- 
isfied. 

(Sec.  357.)  The  delivery  of  the  undertaking  to  the  court  below,  shall  stay  the 
issuing  of  execution  ;  or,  if  it  has  been  issued,  the  service  of  a  copy  of  the  under- 
taking, certified  by  the  court  below,  upon  the  officer  holding  the  execution,  shall 
stay  further  proceedings  thereon. 

(Sec  35y.)  Where,  by  reason  of  the  death  of  a  Justice  of  the  Peace,  or  his  re- 
moval from  the  county,  or  any  other  cause,  the  undertaliing  on  the  appeal  cannot 
be  delivered  to  him,  it  shall  be  filed  with  the  clerk  of  the  appellate  court,  and  no- 
tice thereof  given  to  the  respondent,  or  his  attorney  or  agent,  as  provided  in  section 
three  hundred  and  fifty-four,  it  shall  thereupon  have  the  same  effect  as  il  delivered 
to  the  Justice. 

(Sec.  359.)  When  the  affidavit  and  notice  of  appeal  shall  have  been  served,  the 
respondent  may  supply  or  correct  material  omissions  or  misstatements  therein,  by 
an  affidavit  on  his  part,  a  copy  of  which  shall  be  served  on  the  Justice,  and  also 
the  attorney,  if  any,  who  prosecutes  the  appeal,  or,  if  there  be  none,  on  the  appel- 
lant, within  ten  days  after  receiving  notice  of  the  appeal. 

(Sec.  3G0.)  The  court  below  shall  thereupon,  after  ten  days,  and  within  thirty 
days  after  service  of  the  notice  of  appeal,  make  a  return  to  the  appellate  court  of 
the  testimony,  proceedings  and  judgments,  and  file  the  same,  with  the  affidavits,  in 
the  appellate  court — and  may  be  compelled  to  do  so  by  attachment.  But  no  Jus- 
tice of  the  Peace  shall  be  bound  to  make  a  return,  unless  the  fee  prescribed  by  the 
last  section  of  this  chapter  be  paid  on  service  of  the  notice  of  appeal. 

(Sec.  3Gl.)  When  a  Justice  of  the  Peace,  by  whom  a  judgment  appealed  from 
was  rendered,  shall  have  gone  out  of  office  before  a  return  is  ordered,  he  shall  nev- 
ertheless make  a  return  in  the  same  manner,  and  with  the  like  etFect  as  if  lie  were 
still  in  office. 

(Sec.  302.)  If  the  return  be  defective,  the  appellate  court  may  direct  a  further 
or  amended  return  as  often  as  may  be  necessary,  and  may  compel  a  compliance 
with  its  order  by  attachment. 


654  APPENDIX. 

(Sec.  3fi3.)  If  a  Justice  of  llie  Peace,  whose  judgment  is  appealed  from,  shall 
die,  become  insane,  or  remove  from  the  state,  the  appellate  court  may  examine  wit- 
nesses oil  oath,  to  the  facts  and  circuniistances  of  the  trial  or  judgment,  and  deter- 
mine the  appeal,  as  if  the  facts  had  been  returned  by  the  Justice.  If  he  shall 
have  removed  to  another  county  within  the  state,  the  appellate  court  may  compel 
him  to  make  the  return,  as  if  he  were  still  within  the  county  where  the  judgment 
was  rendered. 

(Sec.  364.)  If  a  return  he  made,  the  appeal  may  be  brought  to  a  hearing  at  a 
general  term  of  the  appellate  court,  upon  a  notice  by  either  party  of  not  less  than 
eicrht  days.  It  shall  be  placed  upon  the  calendar,  and  continue  thereon  without 
further  notice,  until  finally  di.<posed  of;  but  if  neither  party  bring  it  to  a  hearing 
before  the  end  of  the  second  term,  the  court  shall  dismiss  the  appeal,  nnless  it  con- 
tinue the  same  by  special  order  for  cause  shown. 

(Sec  365.)  The  appeal  shall  be  heard  on  the  original  papers  ;  and  no  copy 
thereof  need  be  furnislied  for  the  use  of  the  court. 

(Sec  366.)  Upon  the  hearing  of  the  appeal,  the  appellate  court  shall  give  judg- 
ment according  to  the  justice  of  the  case,  without  regard  to  technical  errors  or  de- 
fects which  do  not  atfect  the  merits.  In  giving  judgment,  the  court  may  affirm  or 
reverse  the  judgment  of  the  court  below,  in  whole  or  in  part,  and  as  to  any  or  all 
the  parties,  and  for  errors  of  law  or  fact. 

(Sec.  367.)  To  every  judgment  upon  an  appeal,  there  shall  be  annexed  the  affi- 
davits or  return  on  which  it  was  heard,  which  shall  be  filed  with  the  clerk  of  the 
court,  and  shall  constitute  the  judgment  roll. 

(Sec.  368  )  If  the  judgment  be  affirmed,  costs  shall  be  awarded  to  the  respond- 
ent. If  it  be  reversed,  costs  shall  be  awarded  to  the  appellant.  If  it  be  affirmed 
in  part,  the  costs,  or  such  part  as  to  the  court  shall  seem  just,  may  be  awarded  to 
either  party. 

(Sec.  369.)  If  the  judgment  below,  or  any  part  thereof,  be  collected,  and  be  af- 
terwards reversed,  the  appellate  court  shall  order  ihe  amount  collected  to  be  re- 
turned, with  interest,  from  the  time  of  collection.  The  order  may  be  obtained 
upon  proof  of  the  facts,  made  at  or  after  the  hearing,  upon  a  previous  notice  of  six 
days. 

(Sec.  370.)  If,  upon  an  appeal,  a  recovery  be  had  by  one  party,  and  costs  be 
awarded  to  the  other,  the  appellate  court  shall  set  off  the  one  against  the  other, 
and  render  judgment  for  the  balance. 

(.Sec.  371.)  'i'he  following  fees  and  costs,  and  no  other,  except  fees  of  officers, 
shall  be  allowed  on  appeal  : 

To  the  appellant  on  reversal,  fifteen  dollars. 

To  the  respnndent  on  affirmance,  twelve  dollars. 

To  a  Justice  of  the  Peace,  for  his  return,  one  dollar. 

If  the  judgment  ap|)ealed  from  be  reversed  in  part,  and  affirmed  as  to  the  resi- 
due, the  amount  of  costs  allowed  to  either  party  shall  be  such  sum  as  the  appel- 
late court  may  award,  not  exceeding  ten  dollars. 

If  the  appeal  be  dismissed  for  want  of  prosecution,  as  provided  by  section  ^64, 
no  costs  shall  be  allowed  to  either  party. 

18.  Of  Ihe  Fees  of  Officers,  and  of  Witnesses  and  Jurors.     [2  R.  S.] 
To  ihe  Justice. 

For  a  summons,  nine  cents  ;  when  judgment  shall  bo  rendered  against  the  de- 
fendant, no  more  than  two  suumions  and  the  service  of  the  two  summons  shall  be 
iiicludc.-d  in  the  costs  of  such  judgment. 

l-'or  a  warrant,  twelve  and  a  half  cents. 

For  an  attachment  or  execution,  nineteen  cents. 

For  every  adjournment,  except  such  as  shall  bo  made  by  the  Justice  without  the 
motion   of  cither  party,  nine  cents. 

For  a  Kubporna,  six  cents. 

For  admini.stering  any  oath,  six  cents. 

For  (iling  every  p.ipc-r  rcrinircil  to  be  filed  with  him,  three  cents  ;  but  no  fee  shall 
be  allowed  for  (iling  any  wnttm  (lcclarali(Mi,  plea,  or  otiier  written  pleading,  or  for 
filing  any  process  issued  in  any  cause. 

For  a  venire,  ninclccMi  cents. 

For  swearing  u  juryj  twelve  and  a  half  cents. 


APPENDIX.  655 

For  piiterinrr  a  judgment,  twenty-five  cents. 

For  every  Loud,  or  otlier  wiitt,f  n  security,  directed  to  be  iHkeu  by  any  of  the  pro- 
visions of  tiiis  title,  if  dr;ifted  by  tlio  Justice,  twcntyfivo  cents;. 

For  making  a  return,  uj)on  an  appeal,  seventy-five  cents.* 

For  every  order  for  a  commissinn  to  examine  witnesses,  attending,  settling,  and 
certifying  interrogatories  to  be  annexed  to  a  commission,  fifty  cents. 

To  one  or  more  commissioners,  for  taking  and  returning  testimony  in  tlie  whole, 
one  dollar. 

For  every  subpoena  or  oath,  six  cents. 

The  following  items  may  also  be  taxed  in  cases  where  a  commission  is  issued. 

For  serving  subpoenas  and  attendance  of  witnesses  before  the  commissioners,  the 
same  fees  as  are  allowed  by  law  in  Justices'  conrts. 

For  postage  for  sending  and  returning  commission,  with  testimony,  not  to  exceed 
one  dollar. 

To  Witnesses. 

From  the  same  county  sub[iGBnaed  and  attending,  twelve  and  a  half  cents  ;  from 
any  other  place  than  the  same  county,  twenty-five  cents  for  every  day's  actual 
attendance. 

To  Constables. 

For  serving  a  warrant  or  summons,  twelve  and  a  iialf  cents. 

For  a  copy  of  every  summons  delivered  on  request,  or  left  at  the  dwelling  of  the 
defendant  in  his  absence,  nine  cents. 

For  serving  an  attachment,  fifty  cents;  for  a  copy  thereof,  and  an  inventory  of 
the  property  seized,  left  at  the  last  residence  of  the  defendant,  fifty  cents. 

For  serving  an  execution,  five  cents  for  every  dollar  collected  to  the  amount  of 
fifty  dollars,  and  two  and  a  half  cents  for  every  dollar  collected,  over  fifty  dollars. 
'  For  every  mile  going  only,  more  than  one  mile,  when  serving  a  summons,  war- 
rant, attachment,  or  execution,  si.x  cents  ;  to  be  computed  from  the  pi, ice  of  abode 
of  the  defendant,  or  where  he  shall  ba  found,  to  the  place  where  the  precept  is  re- 
returnable. 

For  notifying  a  plaintiff  of  the  service  of  a  warrant,  twelve  and  a  half  cents  ;  and 
for  going  to  the  plaintilF's  residence,  or  where  such  notice  was  served,  six  cents  for 
every  mile  more  than  one  :  summoning  a  jury,  fifty  cents. 

To  Jurors. 

For  attending  to  serve  as  such,  though  not  sworn,  six  cents  each. 

For  attending  and  trying  a  cause,  twelve  and  a  half  cents  each. 

To  each  juror  sworn  before  any  officer  in  any  special  proceeding  allowed  by  law  ; 
or  before  any  sherifF  upon  any  writ  of  inquiry,  or  to  try  any  claim  to  personal  pro- 
perty, twelve  and  a  half  cents. 

Fees  of  Justices  of  the  Peace,  in  proceedings  before  them,  not  provided  for  in  the 
Act  relating  to  the  Justices'  Court. 

For  a  warrant  for  the  apprehension  of  any  person  charged  with  any  violation  of 
the  laws  concerning  the  internal  police  of  the  state,  or  with  being  the  father  of  a 
bastard,  nineteen  cents. 

Endorsing  any  such  warrant,  issued  from  another  county,  twelve  and  a  half 
cents. 

Summons  for  any  offence  relating  to  the  internal  police  of  the  state,  or  in  case 
of  any  special  proceeding  to  recover  the  possession  of  land,  or  otherwise,  twenty- 
five  cents. 

Drawing,  signing,  and  depositing  with  the  clerk  of  the  county,  a  record  of  con- 
viction, tliirty-seven  and  a  half  cents. 

An  execution  upon  any  conviction  before  him,  nineteen  cents. 


It  has  been  seen,  tliat  the  Code  allows  the  Justice,  for  hi.s  return,  one  dollar. 


656  APPENDIX. 

Drawing,  copyincr,  and  certifying  a  bond  or  recognizance,  and  filing  the  same 
with  the  county  clerk,  twenty-five  cents. 

Warrant  of  commitment  for  any  cause,  nineteen  cents. 

Every  subpoena,  six  cents  ; 

For  a  precepi  to  summon  a  jury,  thirty  seven  and  a  half  cents. 

Swearing  any  jury,  twenty-five  cents. 

Hearing  the  matter  concerning  which  a  jury  is  summoned,  fifty  cents. 

Receiving  and  entering  their  verdict,  twelve  and  a  half  cents. 

For  takino-  and  certifying  the  acknowledgment  of  any  instrument  v\'hich  is  re- 
quired to  be  acknowledged  before  a  Justice,  twenty-five  cents  ;  every  additional 
person,  twelve  and  a  half  cents. 

Every  oath,  six  cents. 

For  a  view  of  premises  alleged  to  have  been  deserted,  fifty  cents. 

Constables'  Fees  in  the  foregoing  special  proceedings. 

Serving  summons,  twelve  and  a  half  cents. 

Serving  a   warrant,  nineteen  cents. 

Mileage  for  going,  only,  for  each   mile,  six  cents. 

Summoning  and  swearing  appraisers,  and  taking  the  appraisement,  fifty  cents  ; 
and  twenty-five  cents  to  each  of  the  appraisers. 

Levying  any  fine,  penally,  or  sum,  pursuant  to  any  warrant,  the  same  fees  as 
are  allowed  for  similar  services  on  execntions  from  Justices'  Courts. 

Arresting  and  committing  any  person,  pursuant  to  process,  fifty  cents  ;  and  mile- 
age, for  going  only,  six  cents. 

And  for  any  services  not  herein  provided  for,  which  may  be  rendered  by  a  con- 
stable, the  same  fees  as  arc  allowed  by  law  to  sheriff's  for  similar  services  ;  among 
which   are   the    following : 

Putting  any  person  entitled,  into  the  possession  of  premises,  and  removing  the  te- 
nant, one  dollar  and  twenty-five  cents  ;  and  the  same  travelling  fees  as  upon  an 
execution. 

Summoning  a  jury  to  try  the  title  to  any  personal  property,  attending  such  jury, 
&c.,  one  dollar  and   fifty  cents. 

Summoning  a  jury  pursuant  to  any  precept  or  summons  of  any  officer,  in  any 
special  proceeding,  one  dollar  ;  and  for  attending  such  jury,  when  required,  fifty 
cents. 

19.   General  Provisions  concerning  Justices'  Courts,  and  Proceedings  therein 

2  Revised  Statutes,  30:2.  (^Sec.  238.)  All  process  sued  by  a  Justice  of  the 
Peace  shall  be  eigiied  by  him,  and  may  be  under  seal  or  without  seal. 

(,.Sec.  239.)  Every  summons,  warrant,  attachment,  and  execution  issued  by  a 
Justice  of  llie  Peace,  shall  be  entirely  filled  up,  and  shall  have  no  blank,  either  in 
the  date,  or  otherwise,  at  the  time  of  its  delivery  to  an  officer  to  be  executed. 
Every  such  process  which  shall  be  issued  and  delivered  to  an  officer  to  be  execut- 
ed, contrary  to  the  foregoing  provision,  shall  be  void. 

(Sec.  240.)  No  constable  shall  ask  or  receive  any  money,  or  valuable  thing 
from  a  defendant,  or  any  other  person,  as  a  consideration,  reward,  or  inducement, 
for  omitting  to  arrest  any  defendant,  or  to  carry  him  before  any  Justice  ;  or  for  de- 
laying to  take  any  party  to  prison  ;  or  for  postponing  the  sale  of  any  property  under 
any  execution  ;  or  for  omitting  or  delaying  the  execution  of  any  duty  pertaining 
to  his  office. 

(Sec.  241.)  No  Justice  of  the  Peace  or  constable,  shall,  directly,  or  indirectly, 
buy,  or  be  int'^restcd  in  buying,  any  bond,  note,  or  other  demand,  or  cause  of  ac- 
tion, for  the  purpose  of  commencing  any  suit  thereon  before  a  Justice;  nor  shall 
any  Ju^ticn  or  constable,  either  before,  or  after  suit  brought,  lend  or  advance,  or 
agree  to  lend  or  advance,  or  procure  to  be  lent  or  advanced,  any  money  or  otlier  val- 
uable thing  to  any  person,  in  consideration  of,  or  as  a  reward  for,  or  inducement  to, 
the  placing,  or  having  |)laced  in  the  hands  of  such  Justice  or  constable,  any  debt, 
demand,  or  caii.se  of  action  whatever,  for  prosecution  or  collection. 

(Sec.  212)  Every  Justice  or  constahio  oirending  against  either  of  the  provisions 
of  the  three  last  sections,  shall  bi;  deemed  guiliy  of  a  misdemeanor,  and  on  convic- 
tion shall  be  subject  to  line,  or  imprisonment,  or  both,  in  the  discretion  of  the  court. 
Every  such  conviction,  Hhall  operate  as  a  forfeiture  of  the  office  of  the  Justice,  or 
coiiHtabIc,  Bu  convicted. 


APPENDIX  657 

(Sec.  243.)  The  defendant,  in  any  suit  to  be  brought  in  any  action  of  debt, 
covenant,  or  assumpsit,*  in:iy  give  notice  willi  liis  plea,  in  addition  to  any  other 
mutter  of  defence,  that  on  the  trial  of  tlie  cause,  he  will  insist  and  prove  that  Iho 
demand  on  which  such  action  is  founded,  has  been  bought  and  sold,  or  received  for 
prosecution,  contrary  to  law,  without  setting  forth  any  other  j);irticulars. 

(Sec.  244.)  'I'Jie  defendant,  in  any  such  suit,  may  serve  a  notice  on  the  plaintiff 
two  days  before  the  trial,  requiring  him  to  appear  personally  on  such  trial  to  be  ex- 
amined ;  and  it  shall  b?  the  duty  of  the  plaintiff  to  attend  such  trial  for  that  pur- 
pose ;  and  in  case  of  such  attendance,  he  shall  be  entitled  to  the  like  fees  as  are 
allowed  by  law  to  witnesses  ;  but  the  plaintiff  shall  not  be  so  summoned,  nor  re- 
quired to  attend  the  trial  to  give  evidence  as  aforesaid,  except  from  the  same  county, 
or  the  county  next  adjoining  that  in  which  tiie  cause  is  tried. 

(Sec.  245.)  In  case  such  plaintifl'  .shall  not  attend  such  trial,  he  shall,  in  proof  of 
the  due  service  of  such  notice,  be  nonsuited  in  such  action,  unless  such  failure 
to  attend,  shall  be  accounted  for,  to  the  satisfaction  of  the  couri ;  in  which 
case,  the  court  may  postpone  the  trial,  on  the  plaintiff  paying  the  costs  of  prepar- 
ing for  the  trial.  And  if  such  plaintiff  .shall  not  attend  at  the  time,  to  which  the 
trial  shall  be  postponed,  he  shall  be  nonsuited. 

(Sec.  246.)  On  the  trial  of  the  cause  in  which  such  noticeshall  have  been  given, 
if  the  defendant  shall  require  it,  the  plaintitf  and  his  attorney  and  any  other  perfcoii 
who  may  be  interested  iu  the  recovery  in  s  uch  cause,  shall  be  examined  on  oath, 
touching  thematter  set  forth  in  such  notice. 

(Sec.  247.)  If  any  such  plaintiff  so  required  to  be  examined,  or  if  any  person 
interested  in  the  recovery  of  the  suit,  shall  refuse  to  answer  on  oath,  such  que.stions 
as  shall  be  pertinent  to  show  a  violation  of  tlie  provisions  of  this  article  ;  or  if  on 
such  examination,  it  shall  appear  that  the  cause  of  action  on  which  such  suit  is 
founded,  has  been  brought  or  procured,  contrary  to  the  true  interest  of  the  provi- 
sions of  this  aiticle,  the  plaintiff  in  such  action  shall  be  nonsuited. 

(Sec.  248)  No  evidence  derived  I'rom  the  examination  of  any  such  plaintiff, 
or  other  person  shall  be  admitted  in  proof  in  any  criminal  prosecution  against  the 
party  so  examined,  for  violating  any  of  the  provisions  of  this  article. 

(Sec.  249.)  Every  Justice  of  the  Peace  shall  keep  a  book,  iu  which  he  shall 
enter, 

1.  The  title  of  all  causes  commenced  before  him  : 

2.  The  time  when  the  first  process  was  issued  against  the  defendant,  and  the 
particular  process  issued. 

3.  The  time  when  the  parties  appeared  before  him,  either  without  process  or 
upon  the  return  of  process. 

4.  Where  the  pleadings  are  made  orally  a  concise  statement  of  the  declaration 
of  the  plaintiff,  the  plea  of  the  defendant,  the  further  pleadings  of  the  parties,  if 
any,  and  the  issue  joined. 

5.  Every  adjournment,  stating  on  whose  motion,  and  to  what  time  and  place. 

6.  The  issuing  of  a  venire,  stating  at  whose  request,  and  the  time  and  place  of  its 
return. 

7.  The  time  when  a  trial  was  had  ;  the  names  of  the  jurors  returned  summoned 
who  did  not  appear,  and  the  fines  imposed  on  them,  if  any. 

8.  The  names  of  the  jurors  who  appeared,  and  of  the  jurors  who  were  sworn  ; 
the  names  of  the  witnesses  sworn  at  the  request  of  either  party,  stating  at  whose 
request ;  the  objections,  if  any,  made  to  the  competency  of  a  witness,  and  the  de- 
cision thereon. 

9.  The  verdict  of  the  jury,  and  when  received. 

10.  The  judgment  rendered  by  the  Justice,  and  the  time  of  rendering  the  same. 

11.  The  time  of  issuing  execution,  and  the  name  of  the  officer  to  whom  deliv- 
ered ;  and  if  issued  upon  the  application  of  any  party,  before  the  time  when  the 
same  should  regularly  issue,  such  fact  shall  be  noted,  and  the  nature  of  the  proof 
given. 

12.  The  return  of  every  execution,  and  when  made  ;  and  every  renewal  of  au 
execution  made  by  him,  with  the  date  of  such  renewal. 

13.  The  fact  of  his  having  given  a  transcript  of  the  judgment  to  be  filed  in  the 
clerk's  office,  and  the  time  when  the  same  was  given. 


'  It  must  be  borne  in  mind  that  the  Code  abolishes  forms  of  action. 

42 


658 


APPENDIX. 


14.  The  fact  of  an  appeal  having  been  made  from  any  judgment  rendered  by 
him,  and  the  time  when  made. 

(Sec.  950.)  'i  lie  several  items  in  the  preceding  section  enumerated  sliall  be  en- 
tered r.nder  the  title  of  such  cause  to  vvhicli  tliey  respectively  relate  ;  and  in  addi- 
tion thereto,  tlie  Justice  may  enter  any  other  proceeding  had  before  him  in  such 
cause  wiiich  he  shall  think  it  useful  to  enter  in  such  book. 

(Sec.  251.)  Whenever  it  shall  become  necessary,  in  an  action  before  a  Justice  of 
the  Peace,  to  give  evidence  of  a  judoment.  or  other  proceeding  had  belore  him, 
the  docket  of  such  judgment  or  other  proceeding,  or  a  transcript  thereof,  certified 
by  him,  shall  be  good  evidence  thereof  before  such  Justice. 

(Sec.  252)  A  transcrijit  from  the  docket  of  any  Justice  of  the  Peace,  of  any 
iudgment  had  before  liini  ;  of  the  proceedings  in  the  cause  previous  to  such  judg- 
ment •  of  the  execution  issued  tiiereon,  if  any  ;  and  of  the  return  to  such  execu- 
tion, if  any;  when  subscribed  by  such  justice,  and  verified  in  the  manner  pre- 
scribed in  the  next  succeeding  section,  shall  be  evidence  to  prove  the  facts  stated  in 
such  transcript. 

(Sec.  253. J  To  entitle  such  transcript  to  be  read  in  evidence,  except  before  the 
same  Justice,  there  siiall  be  attached  thereto,  or  endorsed  thereon,  a  certificate  of 
the  clerk  of  the  county  in  which  such  Justice  resides,  under  the  seal  of  the  court 
of  sue!)  county,  specifying  that  tlie  person  subscribing  such  transcript  was,  at  the 
date  of  tlie  judgment  therein  mentioned,  a  Justice  of  the  Peace  of  such  county. 

(Sec.  254  )  The  proceedings  in  any  cause  had  before  a  Justice  may  also  be 
proved  by  the  oath  of  the  Justice.  In  case  of  his  death  or  absence,  they  may  be 
proved  by  producing  the  original  minutes  of  such  proceedings,  entered  in  a  book 
kept  by  such  Justice,  accompanied  by  proof  of  his  handwriting;  or  they  may  be 
proved  by  jiroducing  copies  of  such  minutes,  sworn  to  by  a  competent  witness,  as 
liaving  been  compared  by  him  with  the  original  entries,  with  proof  that  such  en- 
tries were  in  the  handwriting  of  the  Justice. 

(Sec.  255.)  Whenever  it  sliall  be  necessary  to  make  use  of  an  affidavit  in  any 
proceedings  had  before  a  Justice  of  the  Peace,  such  Justice  shall  have  power  to  ad- 
minister an  oath  to  the  party  making  such  affidavit. 

(Sec.  256.)  Every  Justice  shall  carefully  file  and  preserve  all  affidavits  and  pa- 
pers delivered  to  him  to  be  filed  in  any  cause- 

(Sec.  257.)  Whenever  an  issue  of  fact  shall  Iiave  been  joined  in  any  action  or 
suit  before  a  Justice  of  the  Peace,  and  it  shall  appear,  on  the  application  of  either 
party,  thai  any  witness  not  residing  within  the  county  where  said  suit  is  pending, 
or  the  county  adjoining,  is  material  in  the  prosecution  or  defence  of  such  action  or 
suit,  the  said  Justice  may  award  a  commission  to  one  or  more  competent  persons, 
authorizing  them,  or  any  one  of  them,  to  exaniine  such  witness  on  oath,  upon  the 
interrogatories  settled  by  the  said  Justice,  and  certified  by  iiis  approbation  entered 
or  endorsed  tiiereon,  or  by  the  written  agreement  or  assent  of  the  parties  annexed 
to  sucli  commission  ;  to  take  and  certify  the  depo.^itions  of  such  vv'itness,  and  to  re- 
turn the  same,  according  to  the  directions  given  with  such  commission, — in  which 
commission  both  parties  may  unite. 

(Sec.  25H.)  Such  commission  may  be  granted,  at  the  instance  of  either  party,  by 
such  Justice  of  the  Peace  at  any  time,  upon  proof  that  due  notice  of  such  applica- 
tion for  such  commission  has  been  served  on  the  adverse  party  at  least  six  days  be- 
fore the  lime  of  making  such  application  ;  but  the  issuing  of  such  commission  shall 
not  postpone  the  trial  beyond  the  time  now  aulhoiized  by  law. 

(Sec.  25'J.j  Tiie  commission  shall  be  executed  and  returned,  as  is  prescribed  by 
statuie  when  a  commission  issues  out  of  a  court  of  record,  and  the  deposition  and 
testimony  taken  in  piusuance  thereof,  sliall  be  received  on  the  trial  as  testimony 
in  the  cause,  with  the  like  effect  as  if  such  witness  were  personally  examined  at 
such  trial. 

(Sec.  2<)1  )  When  the  commission  is  executed  in  this  state,  the  commissioners 
Bhall  liiive  the  same  power  to  issue  subia-nus,  swear  witnesses,  and  compel  their 
attendance,  as  Justices  of  the  Peace  have. 

(Sec.  2()2  )  W'luufver  a  judgment  shall  be  rendered  by  a  Justice  of  the  Peace, 
oji  delaiill,  and  in  the  absence  of  the  party  against  whom  the  same  is  rendered,  it 
shall  be  the  duly  of  such  Justice,  on  the  demand  of  any  person  interested  therein, 
to  give  to  such  person  ;i  transcript  of  Buch  judgment,  together  with  a  copy  of  the 
procesH,  pleadings  and  prooi.s  In  the  cause,  when  sinli  pleadings  and  proofs  are  re- 
duced to  wiiting,  or  thi^  siih.^lance  thereof,  when  not  reduci'd  to  willing,  or  such 
urlH  o^  bucii  process,  pleading.s   and   pniol's,  as  niiiy  be  reipiired,  on  his  being  paid 


APPENDIX.  (359 

therefor  twenty-five  cents  for  such  transcript,  and  six  cents  a  folio  for  the  residue 
thereof. 

(Sec.  263.'!  Every  Justice  shall  keep  an  alphabetical  index  of  ail  judffmenls  en- 
tered in  his  docket  book,  in  the  course  of  any  judicial  proceedings  iiad  before  him. 
In  such  index  shall  be  inserted  the  names  of  iho  parties  to  such  judirment,  and  the 
page  of  his  docket  book  where  such  judgment  is  entered. 

(Sec.  264.)  In  case  any  Justice  shall  remove  out  of  the  town  in  which  he  v/as 
elected,  before  or  after  his  term  of  ollice  e.xpires,  he  shall  deposit  with  the  town 
clerk  of  such  town,  all  the  books  and  papers  in  the  custody  of  such  Justice,  rela- 
ting to  any  cause  or  matter  which  shall  have  been  heard  by  him,  or  relating  to  any 
proceeding  or  cause  which  shall  have  been  commenced  before  him. 

(Sec.  2t)5.)  Whenever  any  Justice  shall  be  removed  from  office,  lie  shall,  within 
ten  days  after  receiving  notice  of  such  removal,  and  upon  the  demand  of  the  town 
clerk,  deliver  to  such  clerk  all  the  bt)oks  and  papers  in  the  custody  of  such  Justice 
relating  to  any  cause  or  matter  which  shall  have  been  heard  by  him,  or  relating  to 
any  proceeding  or  caus3  which  shall  have  been  commenced  before  him. 

(Sec.  2GG.)  In  every  book  delivered  by  any  Justice  to  the  town  clerk  pursuant  to 
the  foregoing  provisions,  in  which  he  shall  have  kept  the  docket  of  any  judorments. 
he  shall  enter  a  certificate,  to  be  subscribed  by  him,  stating  that  the  judgments  en- 
tered in  such  book  were  duly  rendered  as  therein  stated,  and  that  the  amounts  ap- 
pearing by  such  book,  to  be  due  on  such  judgments  respectively,  have  not  been 
paid  to  his  knowledge. 

(Sec.  267.)  In  case  any  Justice  shall  die,  or  his  office  shall,  in  any  way  become 
vacant,  and  any  books  or  papers  belonging  to  such  Justice  in  his  official  capacity 
shall  come  to  the  hands  of  any  person,  the  town  clerk  may  demand  and  receive 
such  books  and  papers  from  the  person  having  the  same  in  his  possession. 

(Sec.  268.)  If  any  books  or  papers,  required  by  the  preceding  sections  to  be  de- 
livered to  the  town  clerk,  be  withheld,  tiie  like  proceedings  may  be  had  to  compel 
the  delivery  of  the  same  as  are  provided  in  the  fifth  article  of  the  sixth  title  of  the 
fifth  chapter  of  tlie  first  part  of  the  Revised  Statutes. 

(Sec.  269.)  The  entries  contained  in  the  book  of  minutes  kept  by  any  Justice, 
and  by  him  delivered  to  the  clerk,  shall,  in  all  cases,  be  presumptive  evidence  of 
the  facts  stated  in  such  entries,  but  may  be  repelled  by  contrary  proof. 

(Sec.  270  )  Any  Justice  before  whom  any  judgments  shall  have  been  entered, 
and  whose  term  of  olfice  shall  have  expired,  may  issue  or  renew  executions  on  any 
such  judgment,  at  any  time  within  six  months  after  the  expiration  of  his  said 
office.  But  in  case  such  Ju-tice  shall  be  re-elected,  and  shall  duly  qualify,  on  be- 
ing so  re-elected,  such  Justice  may  issue  executions  on  any  judgment  entered  by 
him,  before  his  term  of  office  shall  have  so  expired,  within  the  time  prescribed  by 
section  one  hundred  and  forty-three  of  article  nine,  of  title  four,  of  chapter  two. 
of  part  three  of  the  Revised  Statutes. 

(Sec.  271.)  If  any  money  shall  have  been  collected  for  any  parly  by  a  Justice 
of  the  Peace  in  his  official  capacity,  and  he  shall  have  neglected  or  refused,  within 
a  reasonable  time  after  demand,  to  pay  over  the  same,  such  neglect  or  refusal  shall 
be  deemed  a  misdemeanor,  and,  on  conviction  thereof,  such  Justice  shall  forfeit  his 
office. 

(Sec.  272.)  Whenever  an  appeal  shall  be  duly  brought  and  served  upon  a  Jus- 
tice, after  he  shall  have  gone  out  of  office,  upon  a  judgment  rendered  by  him  whilst 
in  office,  such  Justice  shall  make  return  to  such  appeal,  in  like  manner  and  with 
the  like  effi^ct  as  if  such  appeal  had  been  served  whilst  he  was  in  office. 

(Sec.  273  )  If  an  appeal  be  made  upon  a  judgment  rendered  by  a  Justice  who 
shall  die,  bcconie  insane,  remove  out  of  the  state,  or  abscond,  so  that  a  return  can- 
not be  compelled,  the  court  to  which  such  appeal  shall  be  n)ade  may  receive  the 
affidavits  of  witnesses  and  of  the  parties  to  the  facts  and  circumstances  of  the  pro- 
ceedings, and  of  the  judgment  upon  which  the  appeal  is  made  ;  and  shall  proceed 
thereon  in  the  same  manner  as  if  such  facts  had  been  returned  by  the  Justice  be- 
fore whom  the  judgment  was  rendered 

(Sec.  275.)  If  a  Justice,  before  whom  a  judgment  shall  have  been  rendered,  shall 
die,  become  insane,  remove  out  of  the  state,  or  abscond,  so  that  the  affidavit,  allow- 
ance of  appeal,  and  bond,  required  by  law  to  be  served  on  such  Justice,  cannot  be 
served,  the  appellant  may  file  such  affidavit,  allowance  and  bond,  with  the  county 
clerk,  who  shall  be  authorized  to  approve  the  sureties  in  such  bond  in  the  same 
manner  as  such  Justice  might  have  done. 

(Sec.  276.)   Upon  serving  a  notice  of  the  filing  of  such  affidavit,  allowance  ana 


660 


APPENDIX. 


bond,  with  the  county  clerk,  upon  the  appellee  within  the  time  allowed  by  law  for 
making  an  appeal,  in  all  res^pects,  as  if  the  same  had  been  served  on  sucli  Justice. 
(tiec.  277.)  If  a  Justice,  after  having  rendered  judfiinent  in  any  cause,  shall  die, 
become  insane,  remove  out  of  the  state,  absconti,  or  oliierwise  vacate  his  office,  be- 
fore issuing  execution  on  such  judgment,  an  action  may  be  maintained  thereon,  in 
which  ihe'originul  docket  of  such  judgmtnl  kept  by  such  Justice  shall  be  presump- 
tive evidence  of  the  facts  therein  stated,  but  it  shall  be  liable  to  be  lepelled  by  con- 
trary jiroof. 

(Sec.  278.)  If  a  Justice,  before  whom  a  judgment  shall  have  been  rendered,  shall 
remove  out  of  the  county,  the  court  of  tlie  county,  upon  proof  of  the  facts,  may, 
by  jnand/mtis,  compel  a  return  to  an  appeal  brought  upon  su(  h  judgment. 

(Sec.  279.)  If,  in  any  action  upon  the  judgment  of  a  Justice,  it  be  established 
that  the  docket  of  a  Justice  has  been  lost  or  destroyed,  or  that  It  cannot  be  pro- 
duced, after  reasonable  etTorts  to  obtain  the  same,  other  proof  of  the  fact  of  a  judg- 
ment iiaving  been  renaered,  maybe  given,  and  may  be  repelled  as  other  facts. 

(Sec.  280.)  If  any  constable  shall  have  collected  any  money  on  execution,  and 
a  recovery  therefor  shall  have  been  had,  against  iiis  sureties,  upon  a  complaint 
thereof  being  made  to  any  three  Justices  of  the  same  town,  they  shall  summon 
such  constable  to  appear  before  them  to  show  cause  why  he  should  not  be  removed 
from  his  office. 

(Sec.  281  )  If  such  complaint  be  established  to  the  satisfaction  of  such  Justices, 
or  of  any  two  of  them,  after  a  hearing  of  the  parties,  or  after  the  refusal  or  neglect 
of  the  constable  to  appear  upon  such  summons,  they  shall,  by  an  instrument  under 
their  hands,  remove  such  constable  from  his  office,  assigning  therein  the  reason  of 
such  removal,  and  shall  file  the  same  in  the  ofike  of  the  town  clerk,  who  shall 
forthwith  cause  a  certified  copy  thereof  to  be  served  on  such  constable. 

(Sec.  282.)  Upon  the  service  of  a  copy  of  such  instrument,  certified  by  the  town 
clerk,  on  t'le  constable  named  therein,  such  constable  shall  cease  to  have  any  power 
or  anihority  as  such,  and  his  office  shall  be  deemed  vacant. 

(Sec.  ubS.)  Every  Justice  who  shall  issue  any  process  authorized  by  this  title, 
excepting  a  venire,  whenever  he  shall  judge  it  expedient,  on  the  request  of  a  party, 
may,  by  "written  authority  endorsed  on  such  process,  empower  any  proper  person 
being  of  lawful  age,  and  not  a  party  in  interest  in  the  .suit,  to  execute  the  same. 

(Sec.  284.)  The  person  so  empowered  shall  thereupon  possess  all  the  authority 
of  a  constable  in  relation  to  the  execution  of  such  process,  and  shall  be  subject  to 
the  same  obligations,  but  shall  not  receive  any  fee  or  reward  for  his  services  therein- 
^,- L-c.  285.)  Every  constable  to  whom  process  shall  be  directed  and  delivered, 
agreeably  to  the  provisions  of  this  title,  shall  execute  the  same  in  person,  and  shall 
not  act  bv  deputy  in  any  case. 

(Sec.  28G)  in  the  following  cases,  and  in  no  other,  a  Justice  of  the  Peace  may 
punish,  as  for  a  criminal  contempt,  persons  guilty  of  the   following  acts: 

1.  Disorderly,  contemptuous,  or  insolent  behavior  towards  such  Justice,  while  en- 
gaged in  the  trial  of  a  cause,  or  in  the  rendering  of  any  judgment,  or  in  any  judi- 
cial proceedings  which  shall  tend  to  interrupt  such  proceedings,  or  to  impair  the 
respect  due  to  his  authority. 

y.  Any  breach  of  the  peace,  noise,  or  other  disturbance,  tending  to  interrupt  the 
official  proceedings  of  a  Justice. 

3.  Resistance,  willully  offered  by  any  person,  in  the  presence  of  a  Justice,  to  the 
execution  of  any  lawful  order  or  process,  made  or  issued  by  him. 

(Sec  287  )  I'unislimcnt  lor  contempt  in  the  foregoing  eases  may  be  by  fine  not 
exceeding  twenty-five  dollars,  or  by  inii)risoninent  in  the  county  jail  not  exceeding 
fise  days,  or  both,  in  the  discretion  of  the  Justice.  liul  no  person  shall  remain 
imprisoned,  for  the  non-payment  of  such  fine,  more  than  ten  days. 

(Sec.  UtiH.)  No  person  shall  be  punLshed  for  a  contempt  before  a  Justice  until  an 
opportunity  shall  iiavo  been  given  him  to  bo  heard  in  his  defence.  And  for  that 
purpose  H  JuBtico  may  issue  a  warrant  to  bring  the  offender  before  him. 

(.Sec.  2Hy.;  Lipun  convicting  any  person  ot  contem|)t,  the  Justice  shall  make  up 
a  ncord  of  such  conviction,  staling  therein  the  parucular  circumstances  of  the 
offence,  and  the  judgment  rendered  thereon  ;  which  shall  bo  subscribed  by  him, 
and  (lied  in  Ihe  ollici-  of  the  county  cleik  within  ten  days  alter  its  date. 

(Sec.  2iil).)  'I'lie  warrant  of  coinmilmenl  for  any  contempt  shall  set  forth  the 
parlicuiar  circurriHlanceB  of  liie  offence,  or  it  shall  be  void. 

(Sec.  2'JI.)  VV  lien  a  wilnoHs,  attending  before  any  Justice  in  any  cause,  shall 
rcfuso  Lo  be  aworn,  in  any  form   prescribed   by  law,  or  to  answer  any  pertinent  or 


APPENDIX.  661 

pro)ier  question,  and  llie  party  at  wliose  instance  lie  attended  siiali  make  oath  that 
the  teslinioiiy  of  such  witness  is  so  far  material,  tiiat  witiiout  it  he  cannot  safely 
proceed  in  tlie  trial  of  such  cause,  such  Justice  may,,  by  warrant,  commit  such  wit- 
ness to  the  jail  of  the  county. 

(Sec.  2i)2  )  Such  warrant  shall  specify  the  cause  for  which  the  same  is  issued, 
and  if  it  be  for  refusing  to  answer  any  question,  such  question  shall  be  specified 
therein  ;  and  such  witness  siiail  be  closely  confined,  pursuant  to  such  warrant,  un- 
til he  submit  to  be  sworn,  or  to  answer,  as  the  case  may  be. 

(Sec.  293.)  The  Justice  shall  thereupon  adjourn  such  cause,  at  the  request  of 
the  parly  in  wliose  favor  such  witness  attended,  from  time  to  time,  until  such  wit- 
ness shall  testify  in  the  cause,  or  be  dead  or  iufane. 

(Sec.  294.)  When  the  name  of  any  defendant  shall  not  be  known  to  the  plain- 
tiff, he  may  be  described  in  the  summons  or  warrant  by  a  fictitious  name  ;  and  if  a 
plea  in  abatement  be  interposed  by  such  defendant,  the  Justice  before  whom  the 
suit  is  pending  shall  amend  the  proceedings  according  to  the  truth  of  the  liiatter, 
and  shall  thereafter  proceed  therein  in  like  manner  as  if  the  defendant  had  been 
sued  by  his  right  name. 

(Sec.  297.;  Any  constable  to  whom  any  execution  shall  have  been  issued  and 
delivered,  and  whose  term  of  office  shall  expire  before  the  time  within  which  the 
collection  or  return  of  such  execution  is  required  by  law,  shall  and  may  proceed,  in 
all  masters  relative  to  said  execution,  in  the  same  manner  as  if  the  term  of  office 
of  such  constable  had  not  expired. 

(Sec.  298.)  Such  constable  and  his  bail  shall  be  liable  for  any  neglect  of  duty, 
and  for  moneys  collected  upon  such  execution,  in  the  same  manner,  and  to  the 
same  extent,  as  if  the  term  of  office  of  such  constable  had  not  expired 

(Sec  299.)  Any  written  authority  to  appear  by  attorney  in  a  Justice's  contt  may 
be  acknowledged  before  any  judge  of  the  county  courts.  Justice  of  tiie  Peace,  or 
commissioner  of  deeds  ;  and  such  authority,  purporting  to  have  been  so  acknow- 
ledged, shall  be  received  as  prima  facie  evidence  of  such  authorit)'  in  any  Justice's 
court  in  this  state. 

(Sec.  3U0  ;  The  fee  for  such  acknowledgment,  shall  be  twenty  five  cents,  and 
the  officer  shall  not  take  the  same,  unless  he  shall  know  the  person  making  it  ;  and 
the  certificate  of  such  acknowledgment  shall  state  that  the  officer  knows  such  person. 

(^See.  301.)  No  execution  issued  or  any  judgment  rendered  by  any  Justice  of 
the  Peace,  upon  any  demand  arising  on  contract,  express  ol  implied,  or  upon 
any  other  judgment  founded  upon  contract,  whether  issued  by  such  Justice, 
or  by  th.e  clerk  of  the  county,  shall  contain  a  clause  authorizing  an  arrest  or  im- 
prisonment of  ilie  person  against  whom  the  same  shall  issue,  unless  it  shall  be  prov- 
ed by  the  affidavit  of  the  person  in  whose  favor  each  execution  shall  issue,  or  tliat  of 
some  other  person,  to  the  satisfaction  of  such  cleik  or  Justice,  either, 

1.  Tliat  such  judgment  was  for  the  recovery  of  collected  money  by  any  public  offi- 
cer ;  or 

2.  For  offiL-ial  misconduct  or   neglect  of  duty  ;  or 

3.  For  damages  for  misconduct  or  neglect  in  any  professional  employment. 
(Sec.  302.)      No  warrant  shall  issue    against  a   defendant  in  any  case,   in  which, 

by  the  provisions  of  the  last  preceeding  section,  an  execution  on  the  judgment  re- 
covered, could  not  be  issued  against  his  body  ;  and  whenever  a  warrant  in  such  case 
shall  issue  the  like  affidavit  shall  bo  required,  as  for  the  issuing  of  an  execution,  by 
the  provisions  of  said  section. 

(Sec.  303.)  Whenever,  by  the  provisions  of  the  last  preceding  section,  no  war- 
rant can  issue,  and  the  plaintifFshall  be  a  non-resident  of  the  county,  and  shall  give 
the  like  proof  of  the  fact,  and  tender  to  the  Justice  the  security  now  required  by  law 
to  entitle  him  to  a  warrant,  the  Justice  shall  issue  a  summons,  which  may  be  made 
returnable  not  less  than  two,  nor  more  than  four  days  from  the  date  thereof,  and 
shall  be  served  at  least  two  days  before  the  time  of  appearance  mentioned  therein  ; 
and  if  the  same  shall  be  returned  personally  served  the  same  proceedings  shall  be 
had,  and  no  longer  adjournment  granted  than  in  case  of  a  warrant  as  the  instance 
of  a  non-res  dent  plaiii'iifi. 

(Sec.  304.)  Wlienever,  by  the  provisions  of  the  thirtieth  section  of  this  act,  no 
warrant  can  issue,  and  tlie  defendant  shall  reside  out  of  the  county,  he  shall  be 
proceeded  against  by  summons  or  attachment,  returnable  not  less  than  two,  nor 
more  than  four  days,  from  the  date  thereof,  which  shall  be  served  at  least  two  days 
before  the  time  of  appearance  mentioned  therein  ;  and  if  such  delendant  be  pro- 
ceeded against  otherwise,  the  Justice  shall  have  no  jurisdiction  of  the  cause. 


662  APPENDIX. 

(Sec.  305.)  In  addition  to  the  cases  in  wl)icli  suiis  may  now  be  commenced  before 
Justices  of  the  Peace  by  attachment,  any  suit  for  the  recovery  of  any  debt  or  dam- 
ag^es  arising  from  any  contract,  express  or  implied,  or  upon  any  judgment  for  one  hun- 
dred dollars  or  less,  may  be  so  commenced  whenever  it  siiall  satisfactorily  appear  to 
said  justice  that  the  defendant  is  about  to  remove  from  the  county  any  of  hisprcprrty 
with  intent  to  defraud  iiis  creditor,  or  has  assigned,  disposed  of.  or  secrete,  or  is  about 
to  assign,  dispose  of,  or  secrete  any  of  his  property,  with  the  like  intent,  whethersuch 
defendant  be  aresident  of  thisstate  or  not. 

(Sec.  306.)  Before  any  attachment  shall  issue  in  such  case,  or  in  tlie  case  pro- 
vided for  in  article  second,  title  third,  cliapter  second,  part  third  of  the  revit^cd  sta- 
tutes, the  plaintiff  shall,  by  his  own  affidavii,  or  that  of  some  other  person,  or  per- 
sons, prove  to  the  satisfaclion  of  the  Justice,  the  facts  and  circumstances  to  entitle 
him  to  the  same,  and  that  he  has  such  a  claim  as  is  specified,  in  the  last  preceding 
section  against  the  defendant,  over  and  above  all  discounts,  whicli  the  defendant 
may  have  against  him,  specifying,  as  near  as  may  be,  the  amount  of  such  claim, 
or  the  balance  thereof;  and  such  plaintiff',  or  some  one  in  his  behalf,  shall  also  exe- 
cute, in  the  cases  provided  for  by  this  act,  a  bond  in  the  penalty  of  at  least  one 
hundred  dollars,  with  such  sureties,  and  upon  such  condition  as  is  required  in  sec- 
tion 29th  of  said  article  ;  and  so  much  of  said  article  as  requires  any  other,  or  dif- 
ferent proof  for  the  issuing  of  an  attachmeut  than  that  required  by  this  section  is 
liereby  repealed. 

(Sec.  307.)  Every  attachment  issued  by  virtue  of  this  act,  or  of  the  provisions 
contained  in  the  said  second  article,  shall  be  served  in  the  manner  now  provided  in 
said  article,  except  that  if  the  defendant  can  he  found  in  the  county,  the  copy  of 
such  attachment  and  inventory,  shall  be  served  upon  him  personally,  instead  of 
leaving  the  same  at  the  place  now  prescribed  in  said  article  ;  and  the  return  of  said 
officer  in  addition  to  what  is  now  required  shall  state  specifically  whether  such 
copy  was,  or  was  not,  personally  served,  upon  the  defendant. 

(Sec.  308.)  If  such  attachment  was  issued  in  one  of  the  cases  provided  for  by 
this  act,  and  shall  be  returned  personally  served  upon  the  defendant,  the  Justice 
shall,  on  the  return  day,  proceed  to  hear  and  determine  the  cause  in  the  same  man- 
ner as  upon  a  summons  returned  personally  served. 

(Sec.  309  )  If  such  attachment  was  issued  in  one  of  the  cases  provided  for  by 
this  act,  and  at  the  return  day  it  shall  appear  by  the  return  that  property  was  at- 
tached, and  that  a  copy  of  such  inventory  and  attachment  was  not  personally 
served,  and  the  defendant  shall  not  appear,  the  plaintiff"  may  take  out  a  summons 
against  the  defendant ;  and  if  such  summons  shall  be  returned  that  the  defendant 
cannot  be  found,  after  diligent  inquiry,  or  thnt  the  same  has  been  personally  served 
upon  the  defendant,  then,  in  either  case,  the  Justice  shall  proceed  to  hear  and  de- 
termine the  cause  in  the  same  manner  as  upon  a  summons  returned  personally 
served. 

(Sec.  310)  A  judgment  obtained  before  any  Justice  in  any  suit  commenced  by 
attachment,  when  the  defendant  shall  not  be  personally  served  with  the  altrtch- 
jncnt  or  Bummons,  and  shall  not  appear,  shall  be  only  presumptive  evidence  of  in- 
debtedness in  any  suit  that  may  be  brouglit  thereon,  and  may  be  repelled  by  the 
defendant;  and  no  execution  issued  upon  such  judgment  shall  be  levied  upon  any 
other  property  than  such  as  was  seized  under  the  attachment  issued  thereon  ;  nor 
shall  any  defendant,  in  such  case,  be  barred  of  any  set-off"  which  ho  may  have 
against  the  plaint  iff. 

(Sec.  311.)  A  defendant  against  whose  body,  by  Ihc  j)rovisions  of  this  act,  an 
execution  cannot  be  issued  from  a  Justice's  court,  shall  not  be  required,  in  order  to 
obtain  an  arljournment  of  a  cause,  to  give  a  bond  with  the  condition  now  required 
bylaw,  but  instead  thereof,  the  condition  of  such  bond  shall  be  that  no  part  of  his 
properly  linblo  to  be  taken  on  execution  shall  be  removed,  secreted,  assigned,  or  in 
any  way  dis|)ose(i  of,  except  the  necessary  support  of  himself  and  family,  until  the 
plainiKF'H  demand  shall  be  satisfied,  or  until  iho  expiration  of  ten  days  after  such 
plaintiff'  Hhall  be  entitled  to  have  an  execution  issuc(l  on  the  judgment  obtained  in 
such  CJjuse,  if  he  shall  obtain  such  judgment  ;  and  if  the  condition  of  such  bond 
be  broken,  and  an  execution  on  such  jiulguicnt  bo  returned  unsiiisfied  in  whole,  or 
in  [larl,  the  phiintiir.  in  an  aetion  on  such  boiul,  shall  bo  entitled  to  recover  the 
amount  due,  on  such  ju(lgmei\t. 


INDEX 


ACCOUNT, 

what  subsisting;,  where  aRcounts  have  been  settled,  8. 

definition  of  matters  of.  39. 

how  matters  of,  arise,  39. 

unliquidated,  interest  not  recoverable  on,  44. 

when  parly  required  to  exhibit,  91. 

when  presented  to  board  of  supervisors,  must  be  numbered,  51'.. 

of  board  of  supervisors,  required  to  be  made  out  in  items,  513. 
ACKNOWLEDGMENT, 

of  instruments,  may  be  taken  by  justice,  153. 

justice  required  to  know  the  party  making,  152. 

forms  of,  152,  153,  154,  155,  156,  157. 
ACTIONS, 

how  commenced,  52. 

when  deemed  commenced,  52. 

cause  of,  how  staled,  54. 

in  whose  name  prosecuted,  5. 

when  plainiitTmay  discontinue  or  withdraw,  191. 

how  brought  by  town  and  county  officers,  5. 

how  brouujht  against  county  and  town,  6. 

before  what  justice  brought,  7. 

but  one  form  of, — how  denominated,  9. 

how  stated  in  process  and  pleadings,  9. 

what  cognizable  by  justices'  court,  9,  10. 

when  may  be  brought  by  vendor,  against  a  person  not  interested  in  pro- 
perty sold,  25. 

when  will  not  lie  on  a  parol  warranty,  27. 

separate,  how  brought  on  the  condition  of  a  bond,  28. 

what  necessary  to  sustain,  when  two  concurrent  acts  are  stipulated,  12. 

to  sustain  for  money  paid,  what  necessary  to  appear,  39,  40. 

to  sustain  for  money  had  and  received,  what  necessary  to  appear,  40. 

money  paid  by  mistake,  or  paid  on  a  contract  wiiich  has  been  rescinded, 
recoverable  by,  40. 

will  lie  to  recover  money  paid,  where  consideration  of  payment  fills,  40. 

will  lie  to  recover  money  paid,  when  payment  obtained  fraudulently,  41. 

money  paid  upon  an  illegal  contract  cannot  be  recovered  by,  41. 

to  sustain  for  money  hid  and  received,  what  necessary,  41. 

to  support  for  goods  sold  and  delivered,  what  necessary,  41. 

when  will  lie  for  work  and  labor,  41. 

when  may  be  maintained  by  servant,  although  he  quit  his  employer's  ser- 
vice, 42. 

infant  entitled  to,  for  part  performance  of  an  entire  contract,  42. 

when  sustained  for  use  and  occupation,  43. 

to  sustain  for  direct  injury  to  personal  property,  what  necessary,  45. 

when   may  be   sustained  for  injury  to  property  in  lawful  possession  0 
wrong-doer,  45. 


664  INDEX. 

ACT]O^S—cnn(ime'l. 

where  immediaie  act  done  by  co-operation  of  several,  may  be  joint  or 

several,  45. 
who  may  maintain,  for  direct  injury  to  real  property,  45. 
person  entering  on  land  of  another,  wiihout  permission,  liable  to,  46. 
person  enteritig  house  of  another,  without  permission,  liable  to,  46. 
person   liable    to,  if   he   enter  house  with  permission,  and  guilty  of  rude 

conduct,  46. 
"when  will  lie  for  injury  to  land,  46. 
when  will  lie  for  damages  done  by  beasts,  46. 

in  action  against  two  or  more  defendants  when  one  may  be  a  witness,  47. 
when  will  lie  for  indirect  injuries,  47. 
when  maintained  against  sheriffs  and  constables,  47. 
ground  of  action  for  injuries  to  person,  as  husband,  parent,  or  master,  48. 
when  will  lie  for  injury  to  personal  property,  not  committed  with  force,  48. 
when  will  lie  against  inn  keeper,  48. 
will  lie  against  attorneys,  for  what,  48. 
when  brought  for  deceit,  48. 

in  action  to  recover  price  of  article  sold,  what  defendant  may  show,  48. 
when  will  lie  for  indirect  injuries  to  real  properly,  49. 
for  penally  or  forfeiture,  where  brought,  50. 
actions  not  cognizable  by  justices  of  ihe  peace,  50. 

to  recover  penalties  imposed  by  bye-laws  of  cities,  towns  and  villages,  51. 
when  party  revoking  power  of  arbitrators,  liable  to,  261. 
within  what  time  to  be  commenced  against  a  constable  or  his  sureties, 

541. 
when  may  be  maintained  against  a  constable,  226,  543. 
what  necessary  to  maintain  where  two  concurrent  acts  are  stipulated,  12. 
of  what  county  judge  may  take  cognizance,  481,  482,  483. 
how  brought  by  and  against  commissioners  of  highways,  550,  551. 
lies  against  parly,  who  wrongfully  sues  out  execution  which  he  knows 

has  been  satisfied,  212.) 
lies  for  obstruction  or  injury  received  on  a  highway,  418,  419. 
in  what  cases  brought  upon  a  judgment,  99. 
in  suing  on  a  judgment  when  deemed  commenced,  99. 
in  suinji  on  a  running  account,  when  deemed  commenced,  99,  100. 
ADJOURNMENT, 

on  motion  of  justice,  109. 

when  justice  may  adjourn,  109. 

justice  can,  in  no  case,  adjourn  on  his  own  motion  a  cause  commenced  by 

warrant,  109. 
when  justice  may  adjourn  to  different  place,  without  consent  of  parties, 

109,  110. 
justice  cannot  adjourn,  by  sending  a  note,  110. 
on  moti(m  of  plaintiff,  110. 
when  plainlilf  entitled  to,  110. 
for  what  lime  had.  110. 

how  cause  commenced  by  warrant,  adjourned  by  plaintifl',  110. 
adjournment  upon  short  summons.  111. 
on  motion  of  defendant,  111. 
wltat  deleniiant  re(|uirod  to  do  to  obtain.  111. 
wliat  lime  allowed  defenrlant  on,  112. 
liow   defendant   may    obl;iin,  in  cause  commenced  by  warrant,  at  suit  of 

non-rcbidenl  plainlifl',  113. 
when  (Icfcnd.inl  must  remain  in  custody  during,  113. 
wlial  defendant  rf'niiired  to  do  to  obtain  second  adjournment,  114. 
when  justice  rcipiiied  to  adjourn,  115. 

parly  wishmg  adjournnieni  must  exhibit  his  account  or  demand,  115. 
parties  may  agree  n|)oti,  115. 
wiiat  binding  agreement  lo,  115. 


INDEX.  665 

ADJOURNMENT— con/n/«eJ. 

effect  of  illegal  adjournment,  115. 

how  irregular  adjournment  waived,  116. 

not  to  exceed  ninety  days,  116. 
AMOUNT  IN  CONTROVERSY, 

when  not  to  exceed  one  i)undred  dollars,  8. 

what  may  be  recovered  before  justice  on  surety  bond,  7. 

how  reduced  to  justices' jurisdiction,  8. 
ANSWER, 

of  wliat  to  consist,  88. 

how  grounds  of  defence  stated  in,  88,  89. 
APPEAL, 

to  what  court  taken,  228. 

names  of  parlies  appealing,  228. 

when  and  how  made,  228,  229. 

how  appellant  may  stay  execution,  230,  231. 

justices'  return  on,  231,  232,  233. 

proceedings  and  costs  in  appellate  court,  233,  234. 
APPEARANCE, 

suits  instituted  by  voluntary,  52. 

when  parties  must  appear,  75. 

how  parties  are  to  appear,  76. 

appearance  by  attorney,  77. 

appearance  by  guardian,  77,  78. 

at  first  appearance  of  parties,  issue  to  be  joined,  83. 
APPRENTICES, 

definition  of,  274. 

relation,  how  created,  275. 

master  must  provide  medical  attendance  for,  275. 

master  entitled  to  wages  of,  275. 

when  justices  of  the  peace  required  to  aid  in  binding,  275. 

when  infant  may  bind  himself,  275. 

infant,  how  bound  by  overseers  of  the  poor,  276. 

foreign  infant,  how  bound,  278. 

contract  of  apprenticeship  of  foreign  infant,  how  assigned,  278. 

service  of,  how  enforced,  279,  280. 

proceedings  where  money  paid  with  apprentice,  285,  286. 

assignment  of  contract  of,  287. 

penalty  for  selling  liquor  to,  372. 
ARBITRATION, 

definition  of,  257. 

who  may  submit  controversy  to,  257. 

respecting  what  property  submission  made,  258. 

duty  of  arbitrators,  258,  259. 

oath  how  administered  to  arbitrators,  258. 

oath  how  administered  to  witnesses,  259. 

■when  submission  to  arbitrators  must  be  in  writing,  260. 

forms  requisite,  in  submitting  or  deciding  by  arbitration,  before  a  justice, 
260. 

how  powers  of  arbitrators  revoked,  261. 

when  party  revoking  liable  to  an  action,  261. 

when  submission  contained  in  the  condition  of  a  bond,  how  obligee  may 
prosecute,  262. 

within  what  time  award  must  be  made,  262. 

what  are  the  essential  requisites  of  an  award,  262. 

effect  of  submission  and  award,  264,  265. 

parties  to,  may  waive  oath  of  arbitrators,  265. 

award,  how  confirmed,  265. 

award,  how  vacated,  265,  266. 

application  to  vacate  or  modify  award,  how  made,  266. 


666  INDEX. 

ARBITRATION— conZmwe^. 

when  court  may  vacate  an  award,  266. 
judgment,  how  rendered  on  an  award,  266. 
what  record  of  judgment  must  state,  266,  267, 
force  and  effect  of  record,  267. 
proceedings  on  appeal  to  an  award,  267. 
when  judgment  on  an  award  enforced  by  rule  of  court,  267. 
when  payment  of  costs  enforced  by  rule  of  court,  267. 
party  may  appeal  from  order  vacaiinjT  award,  267. 
proceedings  where  order  reversed.  268. 
advantages  of  arbitration,  268. 
ARREST, 

what  amounts  to,  71.  _ 

who  privileged  from,  74. 
in  cause  of  action  not  arising  on  contract,  54. 
upon  warrant,  how  made,  60. 

remedy  of  party,  when  void  for  want  of  jurisdiction  of  court,  72. 
ASSESSORS, 

three  in  each  town,  523. 
one  elected  annually  for  three  vears,  523. 
penalty  for  refusing  to  serve,  523. 
Quakers  exempt  from  serving,  523. 
fence-viewers  by  virtue  of  their  offices,  523. 
powers  and  duties  of,  524,  528. 
penalty  for  refusing  to  perform  duties,  528. 

when  neglect  to  perform  duties,  by  whom  duties  performed,  529. 
names  of  refusing  or  neglecting  to  perform  duties,  to  be  transmitted  to 
the  comptroller,  529. 

duties  of,  in  relation  to  taxes  on  dogs,  538,  539. 

compensation  of,  592. 
ASSIGNMENT, 

definition  of,  392. 

difference  between,  and  a  lease,  392,  393. 

of  goods,  chattels,  or  things  in  action,  when  void,  20. 

how  far  change  of  possession  necessary  to  validity  of,  21. 

liability  of  assignee,  393. 
ATTACHMENT, 

process  by,  when  proper,  61. 

what  must  state,  61. 

upon  what  demand  must  be,  for  the  issuing  of,  61. 

demand  must  be  against  debtor  personally,  61. 

when  allowed  by  statute,  61. 

by  whom  application  for,  made,  62. 

how  application  for,  made,  62. 

with  what  accompanied,  62. 

what  to  be  stated  in  affidavit  for,  62. 

what  security  required  before  issuing,  64. 

long  attachment,  65. 

short  attachment.  65. 

when  short  attachment  applicable,  66. 

service  of,  66. 

how  goods  attached  may  bo  prevented  from  being  removed,  66. 

how  person  claiming  property  in  goods  attached  may  obtain  possession  of 
tliem,  67,  68. 

when  constable  must  take  goods  altaclicd  into  his  possession,  68. 

conslablo'.s  return  on,  09,  70. 

wh(;n  summons  must  issue  upon  icluiii  of,  70. 

when  justice  auiliorized  to  proceed  in  the  absence  of  the  defendant,  70. 

lien  upon  goods  taken  by,  71. 

upon  return  of,  justice  inay  amend,  73. 


INDEX.  G67 


ATT  AC  li  M  El<iT—cnnlhiued. 

proof  to  obtain  aijainst  witness,  what,  120. 

against  witness,  how  executed,  22. 
AWARD, 

essential  requisites  of,  262. 

within  what  time  to  be  made,  262. 

effect  of,  264,  265. 

how  confirmed,  265. 

how  vacated,  265,  266. 

application  to  vacate  or  modify,  how  made,  266. 

when  court  may  vacate,  266. 

judgtnent  how  rendered  on,  266. 

proceedings  on  appeal  to,  267. 

when  judgment  on,  enforced  by  rule  of  court,  267. 

party  may  appeal  from  order  vacating,  267. 


B 


BASTARDS, 

definition  of,  313. 

how  and  where  mother  and  child  supported,  313,  314. 

proceedings  to  ascertain  father,  and  compel  him  to  support  child,  315, 

316,  317,  318,  319,  320. 
appeal,  how  made  by  reputed  father  from  order  of  justices'  322. 
when  reputed  father  discharged,  and  when  committed,  322. 
how  reputed  father  kept  during  examination,  323. 
when  reputed  father  released  from  custody,  323. 
when  reputed  father  non-resident  of  county,  how  arrested,  324. 
proceedings  where  father  a  non-resident,  324,  325,  326. 
proceedings  where  mother  refuses  to  disclose  the  name  of  the  father,  327. 
proceedings  where  mother  has  property,  308,  329,  330. 
proceedings  where  mother  refuses  to  appear  before  a  justice  or  justices, 

330,  331. 

proceedings  where  father  or  mother  of  child,  runs  away  leaving  property, 

331,  333. 

how  amount  ordered  to  b&  paid,  by  fatber  or  mother,  diminished,  332, 

333. 
compromise  when,  and  what,  333,  334. 
BEGGARS  AND   VAGRANTS, 
how  defined,  299. 

duty  of  constable,  or  other  peace  officer,  respecting,  299. 
how  proceeded  against,  299,  300. 

requisites  of  record  of  conviction  against,  301,  302,  303,  304. 
what  done  with,  when  committed,  304. 
may  be  searched,  and  properly  found  upon  them  applied  to  their  support, 

while  in  confinement,  306. 
child  found  begging,  how  committed,  306. 
proceedings  where  vagrant  discovered  with  his  face  painted  or  covered, 

307,  308. 
BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES, 
definition  of,  29. 
need  not  be  dated,  29. 
how  maker's  name  subscribed  to,  29. 
what  ought  to  specify,  29. 
must  be  for  the  payment  of  money,  29. 
how  the  money  payable,  30. 
amount  must  be  fixed,  30. 
who  the  holder,  30. 
kinds  of,  30. 


668  INDEX. 

BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES— conlmued. 
most  important  cliaracterisiic  of,  30. 
what  requisite  to  make  negotiable,  30. 
how  negotiable,  30. 

what  meant  by  notes  not  negotiable,  30. 
words  "  value  received,"  not  necessary  in,  30. 
what  note  imports,  30. 
how  made  payable,  30. 
when  payable,  if  no  time  mentioned,  30,  31. 
time  of  payment  not  to  be  altered  by  parol,  3L 
how  time  computed,  31. 
what  meant  by  days  of  grace,  31. 
maker,  payee,  endorser,  and  endorsee,  31. 
when  maker  liable,  31. 

when  demand  necessary,  as  between  holder  and  maker,  31. 
how  maker  may  defend  himself  against  holder,  31. 
to  what  maker  liable,  31. 
interest,  how  computed,  31. 
when  interest  computed  from  date,  32. 
when  note  made  in  one  place  payable  in  another,  32. 
how  interest  on  recoverable,  32. 
what  the  engagement  of  the  endorser,  32. 
how  far  endorser  liable,  32. 
how  far  maker  liable,  32. 
when  demand  of  payment  must  be  made,  32. 
demand  how  made,  32. 
separate  written  agreement  not  to  demand  payment  of  note  until  after 

due,  not  part  of  note,  31. 
consideration  not  necessary  to  validity  of,  after  it   has   been  negotiated, 

and  passed  into  the  hands  of  an  innocent  endorsee,  11. 
proof  of,  159. 
when  demand  of  payment  to  be  made  on  the  day  preceding  the  third  day 

of  grace,  33. 
how  far  custom,  or  usage,  controls  demand  and  notice,  33. 
when  days  of  grace  are  not  allowed,  33. 

where  note  is  payable  on  demand,  when  payment  to  be  demanded,  33. 
what  steps  necessary  to  hold  endorser,  33. 
when  endorser  dead,  upon  whom  notice  served,  34. 
to  whom  holder  sliould  give  notice,  and  who  liable,  34. 
what  will  excuse  the  want  of  regular  notice,  34. 
whom  a  holder  may  charge  by  notice,  34. 
how  the  usual  notice  rendered  unnecessary,  34. 
against  whom  holder  may  enforce  payment,  34. 
wliat  will  discharge  endorsers,  35. 
when  consideration  of  note  may  be  inquired  into,  35. 
how    negotiable    paper    may    be   transferred    by    agent    so   as   to   bind 

owner,  35. 
kinds  of  endorsement,  36. 
endorsements  in  blank,  36. 

how  blank  endorsement  converted  into  special,  36. 

how  boldiir  of  note  may  transfer  it  by  enilorsemeuL  without  being  liable,  30. 
when  note  transferalile  by  mere  delivery,  36. 
endorsement  in  full,  36. 

what  interest  an  endorsement  in  full  transfers,  36. 
restrictive  (indorsonicni,  36,  37. 

how  note  may  be  endorsed  so  as  to  exempt  endorser  from  liability,  37. 
how  far  endorser  ixiund  by  a  blank  note  or  check,  37. 
rights  of  the  holder  of  negotiable  ])aper,  [)ayable  to  bearer,  or  endorsed 

in  bhink,  37. 
who  m;iy  sue  on  note  where  there  arc  several  endorsers,  37. 


INDEX  669 

BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES— conlinued. 

proceedings  wliere  nole  is  lost,  38. 

burthen  ol'  proof  lies  on  defendanl  to  show  lost  note  negotiable,  39. 
BOND, 

definition  of,  28. 

who  may  bind  themselves  by,  28. 

what  will  vitiate,  28. 

how  must  be  sealed,  65. 

for  what  amount  may  be  sued  on  in  justices'  court,  7. 

in  what  cases  a  justice  has  no  jurisdiction  m  an  action  on,  28. 

how  the  oblifjor  of  a  bond  may  be  discharged,  2'J. 
BOOKS  OF  ACCOUNT, 

how  originated,  162. 

what  necessary  to  render  evidence,  162. 

how  proved,  when  party  has  clerk,  162. 

how  proved,  when  j)arty  has  no  clerk,  162. 

when  evidence  as  original  entries,  163. 

rules  in  reference  to,  163,  164. 
BOOKS  AND  PAPERS, 

of  justice,  to  be  deposited  with  the  town  clerk,  255. 


c 

CHALLENGE, 

kinds  of,  168. 

to  the  array  what,  168. 

causes  of  principal  challenge  to  the  array,  168,  169. 

causes  of  challenge  to  the  array  for  favor,  169. 

to  the  polls  what,  169. 

causes  of  principal  challenge  to  the  polls,  169. 

causes  of  challenge  to  the  polls  for  favor,  170. 

justice  cannot,  on  his  own  motion,  challenge  and  set  aside  the  whole 
panel,  170. 

principal  challenges  to  the  array,  or  to  the  polls,  how  tried,  170. 

challenges  to  the  array,  or  polls,  for  favor,  how  tried,  170,  171. 
COLLECTOR, 

to  be  chosen  annually  at  town  meeting,  529. 

required  to  give  security,  529. 

must  file  security,  530. 

upon  what,  security  of  a  lien,  530. 

the  not  giving  security  deemed  a  refusal  to  serve,  530. 

by  whom  assessment  roll  delivered  to  collector,  530. 

duties  of,  in  collecting  taxes,  532,  535. 

when  appointed  by  supervisor  and  justices,  535. 

proceedings  where  collector  refuses  to  pay  over  money,  536,  537. 

losses  sustained  by  default  of,  how  chargeable,  538. 

duties  of,  in  relation  to  taxes  on  dogs,  539. 

I G  p  3    Q\     f)  1}  3 

COMMlSsioN  TO  EXAMINE  WITNESSES, 
when  allowed,  125. 
in  whose  behalf  issued,  125. 
what  proof  required  to  obtain,   126. 
power  of  commissioner  to  issue  subpoenas,   127. 
interrogatories  what,   127. 
general  interrogatory  what,  127. 

how  parties  to  signify  their  agreement  upon  interrogatories,  128. 
interrogatories  how  settled,  where  parties  cannot  agree  upon  them,  128. 
to  whom  commission  directed,  128. 
how  executed,  128,  129. 


670  INDEX. 

COMMISSION  TO  EXAMINE  WITNESSES— cotilinued 

when  depositions  cannot  be  read,   130. 

weight  of  testimony  taken  by  virtue  of,  130. 
COMMISSIONERS  OF  EXCISE, 

board  of,  how  constituted,  573. 

when  and  where  required  to  meet,  574. 

powers  and  duties  of,  574. 

can  take  no  fee  or  reward,  for  licenses,  574, 

when  authorized  to  grant  licenses,  574,  575. 

TP PS  or    595 
COMMISSIONERS  OF  HIGHWAYS, 

how  determined  whether  one  or  three  chosen,  544 

when  three  chosen,  how  divided,  545. 

how  long  holds  office  in  case  of  vacancy,  545. 

how  a  town  may  have  two  or  only  one,  545. 

must  take  the  oath  of  office,  545,  546. 

must  give  security,  546. 

penalty  for  refusing  to  serve,  547. 

powers  and  duties  of,  547,  548,  549,  550,  551. 

actions  how  brought  by  and  against,  550,  551. 

duty  of  successor,  551. 

compensation  of,  524. 
COMMISSIONER  OF  LOANS, 

how  appointed,  and  for  what  time,  499. 

duties  of,  500. 

what  security  required  from,  500. 

who  to  judge  of  sufficiency  of  security,  500. 

for  what  cause  removed,  500,  501. 

compensation  of,  591. 

powers  of,  501,  502,  503,  504,  505. 
COxMPLAINT, 

of  what  to  consist,  85. 

how  made  when  verbal,  86. 
CONSIDERATION, 

necessary  to  a  contract,  11. 

trilling  one  sufficient,  11. 

as  regards  bills  of  exchange  and  promissory  notes,  11. 

mutual  promise  adequate,  11. 

must  arise  at  the  instance  or  request  of  defendant,  12. 

subsisting  legal  obligation  sufficient,  12. 

moral  obligation  not  sufficient,  13. 

what  requisite  in  any  consideration,  13. 

nominal  or  illegal,  may  be  obj'ected  to  even  by  guilty  parly,  13. 
CONSTABLES, 

five  to  be  chosen  in  each  town,  at  the  annual  town  meeting,  539,  540. 

required  to  give  security,  540. 

bond  of  to  be  filed  in  the  ollice  of  the  town  clerk,  541. 

copy  of  bond,  certified  by  town  clerk,  what  evidence  of,  541. 

what  deemed  in  a  refusal  to  serve,  541. 

within  vviiai  time  actions  against,  or  against  their  sureties,  to  be  com- 
menced, 226,  541. 

duties  of,  in  serving  executions,  where  their  term  of  office  has  expired, 
541. 

wlien  to  be  deemed  guilty  of  a  misdemeanor,  541,  542. 

when  removful  by  justices  of  the  peace,  542. 

to  be  buiiuiioiicd  by  .shcrilTto  attend  courts,  and  penalty  for  not  attending, 
512. 

required  to  serve  i)rocos3  in  person,  512,  513. 

when   acli(m  may  be  maintained  against,  543. 

proceedings  against  for  neglect  of  duty,  513,  544. 


INDEX,  07 1 

CONST  AB  LE  Q—coiilinued. 

when  subject  to  fine  and  imprisonment,  544. 

forfeit  ilieir  office,  when,  514. 

witiiin  what  time  required  to  execute  a  bond,  225. 

what  cannot  object  in  reference  to  security,  225. 

cannot  avoid  liability  by  deliverin<r  execution  to  another  officer,  225,  226. 

action  lies  against  for  neglecting  to  return  execution  within  five  days, 

226. 
action  lies  against  for  neglectinsz  to  pay  over  money  collected,  226. 
responsibility  of,  and  of  sureties,  226. 

within  what  time  action  to  be  brought  against  for  escape,  226. 
in  action  against  for  an  escape,  what  would  constitute  a  good  defence,  227. 
when  may  take  defendant's  note,  or  other  security,  for  debt,  227. 
when  protected  in  service  of  process,  void  for  want  of  jurisdiction  in  the 

court,  72. 
liable  to  what  when  receive  money  for  neglect  of  duty,  73. 
process  how  executed  by,  73. 

must  search  for  goods  and  chattels  within  reasonable  time,  215. 
when  not  liable  for  neglecting  to  proceed  under  execution,  215. 
manner  of  making  levy,  21(5. 

when  required  to  call  a  jury  to  try  the  title  of  goods  levied  on,  219. 
sale  of  may  be  adjourned,  222. 
if  term  of  office  expire,  may  still  proceed,  222. 
fees  of,  593,  594. 
CONTEMPTS, 

power  of  courts  in  cases  of,  235. 
when  justices  of  the  peace  may  punish  for,  235,  236. 
punisiuiient  for,  and  when  and  how  enforced,  236,  237,  238,  239. 
CONTRACT, 

definition  of,  10. 
how  divided,  10. 
what  constitutes  a  specialty,  10. 

distinction  between  parol  contracts,  and  contracts  under  seal,  10. 
parol  contracts,  how  divided,  10. 
express  contracts,  10. 
implied  contracts,  10. 

distinction  between  executed  and  executory  contracts,  11. 
consideration  essential,  11. 

rule  as  to  consideration  with  regard  to  bills  of  exchange  and  promissory 
notes,  1 1. 

where  two  concurrent  acts  are  stipulated,  what  necessary  to  maintain  an 
action,  12. 

when  a  party  may  sue  without  averring  performance,  12. 

contract  of  partneship  need  not  be  in  writing,  17. 

what  sufficient  proof  of  the  valid  execution  of  sale,  20. 

when  goods  discovered  to  be  unsound,  what  will  rescind  sale,  25. 

what  each  party  to  a  contract,  as  a  general  rule,  is  obliged  to  do,  25. 

what  always  intended  in  a  contract  i'or  the  sale  and  delivery  of  goods  at 
a  future  day,  where  there  is  no  selection  or  setting  apart,  at  the  time, 
of  particular  articles,  26. 

when  part  of  an  entire  contract  illegal  and  void,  the  whole  void,  43, 

contracts  draw  interest  from  time  of  money  falling  due,  44. 

contracts  of  infants,  91. 

what  acts  of  infant  necessary  to  confirm  voidable  contract,  91. 

contract  of  infant  with  adult  voidable  as  to  infant,  binding  as  to  adult,  92. 

who  can  avoid  infant's  voidable  contract,  92. 

how  far  the  law  will  relieve  an  infant  on  his  contract,  92. 

contract  for  necessaries  binding  upon  infant,  93. 

how  lar  infant  bound  by  contract  for  necessaries,  93. 

who  cannot  make  a  valid  contract,  94. 


672  INDEX. 

CONTR  kCT—conlinued. 

when  contract  of  alien  with  citizen  valid,  94. 

one  indivisible  contract,  not  to  be  made  llie  foundation  of  several  suits,  8. 
CORONERS, 

number  of,  492. 

ho'/V  often  elected,  493. 

must  reside  where,  494. 

powers  and  duties  of,  492,  493,  494. 

compensation  of,  494. 

how  removed,  494. 

fees  of,  591. 
CORPORATIONS, 

may  sue  as  well  as  be  sued,  before  justice,  6. 

how  process  issued  against,  and  how  served,  6. 
STS, 

definition  of,  201. 

what  only  difficulty  concerning,  201,  202. 

when  each  party  pays  his  own,  202. 

what  to  be  included  in  judtrment,  202. 

when  may  be  double,  202,  203. 

fees  of  officers,  witnesses,  and  jurors,  203,  204,  205,  207    207. 
COUN'J'Y, 

charges  of,  596.  597. 
COUNTY  CLERK, 

how  elected,  483. 

duties  of,  483. 

seal  of,  deemed  seal  of  county,  484. 

required  to  appoint  a  deputy,  484. 

when  deputy  may  act  for  cleric,  484. 

neither  clerk,  nor  deputy,  can  practice  in  the  court  of  which  they  are 
clerks,  484. 

durintr  what  hours  must  keep  office  open,  484. 

how  removed,  484. 

when  deputy  required  to  perform  all   the  duties  of,  484,  585. 

fees  of,  58fi,  .'■iS7,  588. 
COUNTY  JUDGE, 

to  be  elected,  480. 

term  of  office,  480. 

duties  of,  480. 

how  paid,  480. 

not  to  practice  in  the  court  of  which  he  is  a  member,  481. 

when  disqualified  from  acting,  cause  transferred,  481. 

how  removed,  481. 

wlien  local  officer  to  discharge  duty  of,  and  of  surrogate,  481,  487. 

of  what  actions  he  may  take  cognizance,  481,  482,  483. 

compensation  of,  580. 
COUNTY  TREASURER, 

how  elected,  4G8. 

term  of  office,  468. 

duly  of,  489. 

powers  of,  489,  490. 

when  power  of,  superseded, 

when  to  prosecute  district  attorney,  491. 

what  Mcciirity  to  be  friven  by,  491. 

coinpens.UioM  of,  491. 

empowered  lo  cullccl  fees,  051. 

fees  of,  591. 


INDEX.  673 

1) 

DAMAGES, 

definition  of,  198. 

amount  of,  how  determined,  198. 

on  contract,  how  estimated,  798,  199. 

in  actions  for  wrongs,  how  estimated,  199,  200. 

plaintiff  can  recover  no  more  than  he  claims,  200. 

if  verdict  exceed  amount  claimed,  plaintiff  may  remit  the  excess,  201. 

must  have  arisen  before  commencement  of  suit,  201. 

in  case  of  several  defendants,  201. 
DEMAND, 

how  reduced  to  justices'  jurisdiction,  8. 

parties  may  divide  large,  into  any  number  of  small,  and  confess  judgment 
therefor,  8. 
DEMURRER, 

definition  of,  89. 

when  parties  inay  demur,  89. 
DESTKUCTION  OF  WOLVES, 

when  state  bounty  for,  allowed,  374. 

proceedings  in  obtaining  bounty,  374,  375,  376. 

penalty  for  Justice  or  other  officer,  wilfully  giving  a  false  certifieate,  376. 
DISORDERLY  PERSONS, 

who  deemed,  308,  309. 

proceedinge  in  prosecution  of,  309,  310,  311,  312,  313. 
DISTRICT  ATTORNEY, 

one  for  each  county,  487. 

how  often  elected,  487. 

duty  of,  487, 

when  partner  of,  cannot  act,  488. 

not  to  act  in  certain  cases  under  a  penalty,  488. 

how  removed,  488. 

fees  of  590. 
DISTURBANCE  OF  RELIGIOUS  MEETINGS, 

what  acts  constitute  offence,  352,  353. 

penalty  for,  352. 

who  may  apprehend  offender,  353. 

when  offender  may  be  brought  before  justice  by  verbal  order,  354. 

when  offender  may  demand  a  jury,  354. 

how  justice  must  proceed  to  inquire  into,  355. 

when  offender  required  to  give  security,  350. 

when  offender  to  be  committed  to  jail,  357. 

within  what  time  justice  required  to  iile  a  certificate  of  conviction  witk 
the  county  clerk,  358. 
DOCKET, 

form  of,  252,  253,  254. 

what  justice  must  note  in,  1,  251,  252. 

evidence  of  what,  149. 

transcript  from,  when  evidence,  149. 

transcript  from,  may  be  made  and  certified,  by  justice,  after  expiration 
of  his  office,  149. 

when  lost,  or  destroyed,  how  judgment  proved,  150. 

justice   omitting  to  note  judgment  in,  will  work  a  discontinuance,  191. 

verdict  of  jury,  to  be  entered  by  justice  in,  186. 

E 

EVIDENCE, 

definition  of,  136. 
nature  of,  136. 

43 


574  INDEX. 

EVIDENCE — continued. 

kinds  of,  136. 

must  be  confined  to  points  in  issue,  137. 

substance  of  issue,  only,  need  be  proved,  137, 

parly  holding  the  affirmative  has  the  burthen  of  proof,  137. 

when  a  negative  must  be  proved,  137. 

best  the  nature  of  the  case  will  admit,  required,  137,  138. 

most  satisfactory  proof  of  which  the  fact  capable,  not  necessary,  138. 

hearsay  not  admissible.  138. 

letters  written  by  third  persons  not  admissible,  139. 

when  what  a  person  said  at  the  time  of  doing  an  act,  evidence,  139. 

when  delarations  of  third  persons  deceased,  evidence,  139. 

how  many  witnesses  required  to  prove  a  fact,  140. 

when  pjirty  may  testify  in  his  own  behalf,  140. 

declarations  of  party  against  himself,  how  regarded,  140. 

statement  of  agent  evidence  against  principal,  140,  141. 

when  confessions  of  party  not  best  proof,  141. 

when  admission  of  one  of  several  joint  plaintiffs  or  defendants,  binds 
all,  141. 

admissions  or  concessions  made  when  compromise  pending,  not  evidence, 
141. 

justice  can  only  decide  on  legal  evidence,  142. 

what  proof  permitted  on  loss  of  instrument,  145. 

when  defendant  may  be  a  witness  for  his  co-defendant,  145. 

counsel  or  attorney  not  permitted  to  disclose  confidential  communica- 
tions, 145. 

secrets  of  clients  not  to  be  disclosed,  145. 

facts  respecting  which  an  attorney  may  be  examined,  145,  146. 

an  agent,  clerk,  or  student  at  law,  not  to  testify  to  what,  140. 

minister  of  the  gospel  not  to  disclose  confessions  made  to  him,  146. 

physician  not  to  disclose  information  acquired  in  attending  patient,  146. 

how  evidence  divided,  146. 

public  writings  of  record,  147. 

public  writings  not  of  record,  147. 

private  writings  how  divided,    147. 

acts  of  legislature,  public  and  private,  how  proved,  147. 

Revised  Statutes,  how  proved,  147. 

what  essential  to  entitle  statute  to  be  read  in  evidence,  147. 

record  of  Justices'  Court  when  disputed,  how  proved,  148. 

copies  of  records,  how  proved,  148. 

proceedings  in  courts  of  law,  not  being  records,  how  proved,  148. 

judge's  order,  how  proved,  148. 

affidavits  made  in  other  states  how  authenticated,  148. 

proceedings  under  insolvent  laws  how  proved,  148,  149. 

proceedings  in  Surrogate's  Courts  how  proved,  149. 

justices'  docket  evidence  of  what,  149. 

transcripts  from  docket,  when  evidence,  149. 

when  parol  evidence  admissible,  to  show  what  facts  were  submitted  to 
court  and  jury,  150. 

when  docket  lost  or  destroyed,  how  judgment  proved,  150. 

wiien  jiisiico  dead  or  absent,  how  ])rocee(lings  before  him  piroved,  150. 

transcripts  from  iIk;  dockets  of  justices  in  other  states,  how  governed,  150. 

proceedings  of  notaries  public,  how  proved,  150. 

acts  of  cor])oration  of  city,  how  proved,  150. 

shcritl  's  sales  of  real   estate,  how  proved,  151. 

papers  in  iho  official  custody  of  clerks  of  courts,  how  proved,  151. 

conveyances  concerning  real  estate,  how  proved,  151. 

proof  of  wills,   151. 

j)roof  of  written  instruments  in  general,  151. 

when  and  how  proof  of  conveyance  contested,  152. 


INDEX.  675 

EVIDE  NC  E— co/i^mwet/. 

acknowledifiueiit  of  instruments  may  be  taken  by  justice,  152. 
justice  must  know  the  party  makina:  the  acknowledgment,  152. 
forms  of  acknowledgments,  152,  153,  154,  155,  15G,  157. 
acknowledgment  or  proof,  before  one  who  styles  himself  a  judge  or  other 

officer,  prima  facie  evidence  of  what,  157. 
where  an  instrument  has  not  been  acknowledged  and  certified,  executioa 

how  proved,  158. 
proof  of  a  deed  or  instrument  under  seal  to  which  there  is  a  subscribing 

witness,  158. 
proof  of  deed  to  which  there  is  a  subscribing  witness,  executed  by  third 

person  not  party  to  suit,  158. 
proof  of  handwriting  of  party,  158,  159. 
seal  only  presumptive  evidence  of  consideration,  159. 
proof  of  bills  of  exchange  and  promissory  notes,  159. 
when  the  production  of  writings  in  proof  not  to  be  dispensed  with,  159. 
receipt,  although  drawn  in  absolute  terms,  and  expressed  to  be  in  full,  not 

conclusive,  161. 
parol  evidence   may  be  given  of  receipt,  without  accounting  for  absence 

of  writmg,  161. 
of  what  parol  evidence  may  be  given,  as  regards  a  written  simple  con- 
tract, 161. 
transcript  of  iudgtnent  prima  facie  evidence  that  justice  had  jurisdiction, 
198. 
EXCISE, 

who  commissioners  of,  364. 

duties  of  commissioners  of,  364. 

when  commissioners  of  required  to  meet,  364. 

powers  of  commissioners  of,  364,  365. 

commissioner's  book  of  minutes,  how  kept,  365. 

license  only  granted  to  residents  of  towns  for  which  board  formed,  365. 

license  to  be  in  writing,  365. 

no  fee  or  reward  to  be  taken  for  license,  365. 

what  security  required  before  granting  license,  366. 

upon  what  conditions  license  granted,  365,  366. 

licenses  to  keep  taverns  to  be  granted  with  certain  restrictions,  367. 

when  license  granted  to  a  grocer,  369. 

what  necessary  to  insert  in  grocer's  license,  370. 

book  of  minutes  of  commissioners  of,  371. 

commissioners  of,  to  do  any  valid  act,  to  be  organized  as  a  board,  371. 

license  a  personal  trust,  371. 

licenses  expire  on  a  given  day,  371. 

fee  of  commissioners  of,  for  drawing  any  bond,  371. 

penalty  for  violating  excise,  371,  372. 

penally  for  selling  liquor  to  apprentice  or  servant,  372. 

penally   for  taking  from  apprentice  or  servant  clothing,  in  payment  for 

liquor,  372. 
penally  for  selling  strong  drinks  to  pauper,  372. 
proceedings  by  court  of  sessions  against  one  who  has  violated  the  e.^cise, 

EXECUriON, 

definition  of,  208. 

by  whom  issued,  208. 

statement  of,  208. 

must  be  entirely  filled  up  and  dated,  208. 

within  what  time  returnable,  208. 

may  be  issued  immediately,  209. 

when  direction  to  collect  interest,  to  be  endorsed  on,  210,  211. 

how  issued  when  the  judgment  is  against  joint  debtors,  212. 

when  action  lies  against  party  for  issuing,  212. 


676 


INDEX. 


■E.XEC'UTIO'N— continued. 

when  may  be  renewed,  or  a  new  one  issued,  212,  213. 

what  justice  nnust  do  to  renew,  212,  213. 

what  would  authorize  the  renewal  of,  in  the  justice,  213. 

when  it  may  be  renewed,  though  sufficient  properly  has  been  levied  on, 

213. 
within  what  time  a  justice,  whose  term  of  office  has  expired,  may  issue 

or  renew  an  execution,  213. 
when  further  execution  issued,  213. 
proof  required  to  issue  further  execution,  214. 
form  of  further  execution,  214. 
when  clause  for  arrest  to  be  inserted  in,  214. 
when  person  taken  in  execution  against  his  body  dies,  what  further  exe- 

dution  may  be  issued,  214. 
endorsement  on,  when  issued  for  a  violation  of  the  statute  relative  to 

excise,  214. 
by  whom  served,  215. 
who  justice  may  ereipower  to  serve,  215. 
endorsement  to  be  made  on  by  constable,  215. 
when  to  be  levied,  216. 

what  property  liable  to  be  taken  on,  216,  217. 
in  serving,  what  officer  may  break  open,  217. 
what  property  exempt  from,  218. 
when  goods  bound  by,  218. 
when  execution  takes  preference,  218,  219. 
impediments  in  the  way  of,  219. 
endorsement  to  be  made  on,  220. 
notice  of  sale  under,  how  given,  221. 
sale  under,  how  conducted,  221,  222. 
against  person,  cannot  issue  until  when,  222,  223. 
how  issued  where  transcript  of  judgment  is  filed,  223. 
how  issued,  after  lapse  of  five  years,  224. 

when  possession  of  another's  goods,  exposes  them  to  execution,  22. 
personal  properly,  after  forfeiture,  liable  on,  against  mortgagee,  23. 
EXECUTOKS  AND  ADMlNlbTRATOUS, 

may  sue,  but  cannot  be  sued,  before  a  justice,  6. 

may  sue,  without  joining  with  them  the  persons  for  whose  benefit  the 

suit  is  i)rosecuted,  5. 
when  judgment  against,  evidence  of  a  debt  established,  to  be  paid  in  the 

course  of  administration,  6. 


FENCE  VIEWERS, 

duties  of,  in  relation  to  division  fences,  577,  578,  579,  580. 

duties  of,  in  relation  to  cattle,  580. 

duties  of,  in  relation  to  floating  timber,  581. 

duties  of,  in  relation  to  sheep  or  lambs,  581. 

duties  of,  relative  to  strays,  581,  582. 

fees  of,  .5115.  .096. 
FORMER  RK(;oVKRY, 

bar  to  a  subsequent  suit,  101. 

where  demand  submitted  to  jury,  perpetual  bar,  105. 

recovery  upon  part  of  an  entire  demand,  bars  the  whole,  105. 

what  rnubt  be  proved  to  make  it  a  bar,  105. 

ERAIII), 

what  presumptive  evidence  of,  on  sale,  assignment,  or  mortgage  of  per- 
sonal property,  21. 


INDEX.  677 

FRAUD — continued. 

how  question    of,  may  arise  otherwise  than  between  mortgagees  and 
creditors,  22. 


GUARDIAN, 

for  infant  plaintiff,  77,  78. 
for  infant  defendant,  78. 


G 


H 


HABITUAL  DRUNKARDS, 

when  overseers  of  the  poor  required  to  designate,  and  forbid  the  sale  of 
liquor  to,  342,  343. 

what  a  person,  or  the  agent  or  member  of  the  family  of  a  person,  forfeits 
by  selling  liquor  to,  343. 

how  fact  of  drunkenness  contested,  344,  345,  346,  347. 
HAWKERS  AND  PEDLARS, 

must  obtain  lincense,  376. 

penalty  for  traveling  without  license,  376. 

penally  for  refusing  to  produce  license,  376. 

what  facts  are  to  be  established  to  ronvict  offender,  378. 

when  offender  committed  to  jail,  378. 

proceedings  where   offence  is  traveling  or  trading  without  license,  379, 
380. 

penalty  to  whom  paid,  380. 

within  what  time  prosecution  to  be  had,  380. 
HIGHWAYS, 

definition  of,  417. 

right  of  owner  of  adjacent  soil  to,  417,  418. 

persons  meeting  on  required  to  turn  to  the  right,  418. 

what  meant  by  centre  of,  418. 

when  action  lies  for  obstruction,  or  injuries  received  on,  418,  419. 

when  action  lies  against  master  for  act  of  his  servant,  on,  419,  420. 

person  assessed  Jo  work  on,  may  appear  how,  420. 

penalty  for  not  appearing  to  work  on,  or  furnishing  team,  420,  421. 

proceedings  to  recover  penalty,  421,  422,  423,  424. 

penalty  for  obstructing,  424. 

proceedings  where  encroached  upon  by  fences,  424,  425,  426,  427. 

penalty  for  running  horses  on,  442. 

penalty  for  leaving  horses  unfastened  on,  442. 


INFANT, 

who,  91. 

what  contracts  of  void,  and  what  voidable,  91. 

intention  of  the  law  in  relation  to,  92. 

guardian  appointed  for,  77,  78,  79. 

may  have  money  independently  of  his  father,  and  sue  for  the  same,  92. 

may  maintain  an  action  for  part  performance  of  an  entire  contract,  42. 

may  bind  himself  apprentice,  93. 

liable  for  wrongs,  93. 

infancy  a  personal  privilege,  94. 
INJURIES, 

indirect,  how  occasioned,  47. 

what  may  be  the  subject  of  an  action,  44. 


678  INDEX. 

IN  JVRIES— continued. 

how  occasioned,  44. 

of  what  justice  has  no  jurisdiction,  44. 

how  direct,  committed  to  personal  property,  45. 

indirect,  to  real  property,  when  subject  of  action,  49. 
INNS, 

licenses  to  keep,  to  be  granted  with  certain  restrictions,  367. 

within  what  time  keeper  of  required  to  put  up  a  sign,  368. 

who  keeper  of  may,  and  may  not,  trust,  368. 
INTEREST, 

rate  of,  43. 

how  month  considered  for  purpose  of  calculating,  44. 

parties  may  agree  upon  less  than  legal  rate,  44. 

where  no  rate  agreed  upon,  what  rate  may  be  demanded,  44. 

how  calculated,  44. 

recoverable  on  contracts  from  time  money  is  due,  44. 

not  recoverable  on  uncertain  demands,  unless  by  agreement,  44. 

not  recoverable  on  open  running^account,  44. 


JUDGMENT, 

definition  of,  nature,  and  kinds  of,  188. 

for  what  amount  justice  may  take  and  enter,  on  confession  of  defendant, 

8,  193. 
when  enforced  by  rule  of  court,  267. 
how  rendered  on  an  award,  266. 
what  record  of,  on  an  award,  must  state,  266,  267. 
when  void  against  a  vendor,  22. 
of  what  evidence,  when  rendered  against  a  number  of  defendants,  part 

of  whom  only  are  served  with  process,  71. 
when  rendered  without  process  or  appearance,  void,  71. 
what  rendered  a;jainst  plaintiff,  if  he  fails  to  appear  within  an  hour  after 

the  joining  of  issue,  or  an  adjournment,  73. 
judgment  of  discontinuance,  188. 
when  judgment  of  discontinuance  entered  on  account  of  justice  being  a 

witness,  189. 
when  judgment  of  discontinuance  rendered  for  the  defendant  with  costs, 

190. 
when  judgment  of  discontinuance  rendered,  and  each  party  pay  their 

own  costs,  190. 
what  will  amount  to  a  discontinuance,  190. 
justice  omitting  to  note  judgment  in  docket,  will  work  a  discontinuance, 

191. 
when  judgment  of  nonsuit  rendered,  191,  192. 
when  judgment  of  nonsuit  to  be  entered  by  reason  of  no  appearance  of 

plaintin.  192. 
if  plaiiitifT  does  not  appear  when  verdict  given,  or  does  not  answer  when 

called,  what  judgment,  192. 
in  ontcring  jud;>meiit  on  confession,  plaintiff  need  not  appear,  193. 
how  the  afliiJavit  recjiiired  by  statute  may  be  avoided,  193,  194. 
amount  confessed  must  be  certain,  194. 
what  conff.'ssion  sliould  state,  194. 
what  alli<lavii  must  stale,  194. 
what  justice  must  render  as  a  general  rule,  195. 
wlieti  tnu-l  retid(!r  forthwith,  1!)5. 

no  such  thing  in  jubticos'  court  as  judginonl  by  default,  195,  196. 
when  to   be  rendered  for  tlio  defendant,  and  when  for  the  plaintiff,  with 

costs,  196. 


INDEX.  679 

JUDG  MENT— continued. 

when  party  may  remit  and  release  an  excess,  and  take  judgment  for  the 

resiHue,  196. 
how  rendered,  where  several  defendants  are  sued  jointly,  some  of  whom 

are  not  served  with  process,  196. 
not  to  exceed  five  dollars,  196. 
when  transcript  of  a  lien  on  real  property,  197. 
transcript  of",  how  obtained,  197. 

when  transcript  of,  must  be  given  to  defendant,  197,  198. 
transcript  of  may  be  made,  after  the  expiration  of  the  justice's  office,  198. 
mandamus  lies  against  justice  refusing  to  give  transcript  of,  198. 
transcript  of  deprives  justice  of  further  control  over,  198. 
how  rendered  when  process  is  issued  against  two  or  more  persoas  jointly 

indebted,  71. 
JURISDICTION, 

of  Justices'  Courts  limited,  1. 

consequences  of  proceeding  without,  2. 

when  want  of  in  justice  may  be  shown,  4. 

consequence  to  justice  of  proceeding  without,  4. 

consequence  where  the  justice  has  jurisdiction,  but  errs  in  the  exercise 

of  it,  4. 
how  far  justice  liable  when  there  is  not  a  total  want  of,  4. 
of  what  persons  justice  has  jurisdiction,  7. 
to  what  amount  justice   has  jurisdiction,  though  the   plaintiff  states  his 

demand  at  more  than  one  hundred  dollars,  8. 
how  amount  reduced  to  justices'  jurisdiction,  8. 
justice  has  not  jurisdiction  of  direct  injury  lo  person,  44. 
when  penalty  sued  for,  goes  to  the  town  of  justice,  in  what  cases  he  has 

jurisdiction,  3. 
of  justice  over  penalties  given  by  statute,  50. 
JURY, 

party  must  demand,  130. 

when  demand  made,  130,  131. 

what  will  be  such  an  investigation  of  the  merits  of  the  case  as  to  preclude 

the  calling,  131. 
how  many  jurors  the  parties  may  have  by  agreement^  131. 
qualifications  of  jurors,  131. 

what  persons  ought  not  to  be  summoned  on,  131,  132. 
when  juror  may  be  excused,  132. 
from  what  place  summoned,  132. 

from  what  place  summoned  when  suit  between  two  towns,  132. 
how  summoned,  132. 
what  meant  by  a  venire,  133. 
to  whom  venire  delivered,  133. 

how  objection  made  against  constables  serving  venire,  133,  134. 
manner  of  executing  venire,  134. 
how  juror  punished  for  default  in  appearing,  134. 
what  evidence  of  default  of  juror,  134. 

how  trial  by  jury  may  be  waived  after  the  issuing  of  venire,  135. 
when  party  has  a  right  lo  insist  upon  trial  by  jury,  135. 
what  justice  must  do,  before  proceeding  to  draw,  167. 
how  jury  obtained,  167,  168. 
objection  to  jurors,  what  called,  168. 
jurors  how  sworn,  171. 
oath  lo  be  administered  to,  185. 
who  sworn  to  attend,  185. 

must  be  kept  together  until  they  agree  on  their  verdict,  185. 
to  what  extent  justice  may  confer  with,  186. 
what  conduct  of,  will  cause  judgment  to  be  set  aside,  186. 


680  INDEX. 

JURY — continued. 

when  they  have  agreed  on  their  verdict,  verdict  to  be  entered  by  justice 
in  his  docket,  186. 

verdict  of,  how  given,  186,  187. 

when  may  bring  in  their  verdict  on  Sunday,  187. 

when  and  how,  they  may  correct  their  verdict,  187. 

must  be  discharged  when  they  cannot  agree,  187. 

proceedings  against,  241,  24-2,  243,  244. 

law  in  relation  to,  in  New  York,  461,  462,  463,  464,  465,  466,  467. 
JUSTICES'  COURTS, 

not  of  record  and  of  limited  jurisdiction,  1. 

confined  to  authority  given  them  by  statute,  1. 

consequences  of  proceeding  without  jurisdiction,  2. 

actions  cognizable  by,  9. 
JUSTICES'  COURT  OF  NEW  YORK, 

into  how  many  judicial  districts,  city  divided,  459. 

justice  elected  in  each  district,  459. 

justice  how  elected  and  how  paid,  459, 

clerk  of,  how  appointed,  459. 

duties  of  clerk,  and  how  paid,  459,  460. 

in  what  districts  actions  tried,  460. 

absence  of  justice  will  not  abate  suit,  460. 

case  how  tried,  when  new  trial  ordered,  460. 

when  justices'  successor  may  issue  or  renew  executions,  461. 

what  evidence  of  proceedings,  461. 

death  of  justice  will  not  abate  any  process,  suit  or  judgment,  461. 

jurisdiction  of,  461. 

appeal  from,  461. 
JUSTICES'  COURTS  IN  BROOKLYN, 

into  how  many  districts  city  divided,  467. 

two  justices  of,  to  be  elected  every  four  years,  467. 

jurisdiction  of,  467. 

appeals  from,  to  what  court,  407. 

vacancy  in  office  of  justice,  how  supplied,  467. 

municipal  court  of  Brooklyn,  repealed,  467,  468. 
JUSTICES'  COURT  OF  ALBANY, 

five  justices  of,  to  be  elected  every  four  years,  468. 

justices  of,  how  elected,  468. 

three  justices  to  be  designated  for,  469. 

when  justices  to  enter  upon  the  discharge  of  their  duties,  468,  469. 

powers  and  duties  of,  when  created  and  defined,  469. 

analogy  of  jurisdiction  to  that  of  justices  in  towns,  469. 

when  one  justice  of,  may  try  and  render  final  judgment,  469,  470. 

power  of,  to  suspend,  or  totally  exclude  attorney,  470. 

may  exact  from  non-residents  a  depiisit  as  security,  470. 

constable  how  remcjvcd  by  justices  of,  470. 

vacancy  in  the  office  of  constable,  how  supplied  by,  470. 

justices  of,  how  paid,  470,  471. 

who  clerk  of,  471. 

duty  of  clerk  of,  471. 
JUSTICES'  COURT  OF  TROY, 

three  justices  and  clerk  of,  to  be  elected,  471. 

how  and  for  what  term  (o  hold  office,  471. 

how  often  rc-eleclod,  471. 

vacancy  in  ili<;  office  of  justice  or  clerk,  how  su{)plicd,  471,  472. 

authority  of  justices,  472. 

jurisdiction  of,  472. 

fees  and  cosIh  duo  to,  bow  aued  for  and  recovered,  472,  473. 
JUSTICE.^'  COURI'  OK  HUDSON, 

justices  of  elected  and  designated,  473. 


INDEX.  681 

JUSTICES'  COURT  OF  HUDSON— con^mweJ. 

vacancy  in  office  of  justice  of,  how  supplied,  473. 

clerk  of,  how  appointed,  473. 

authority  and  jurisdiction  of,  473,  474. 
JUSTICES'  COURTS  OF  CITIES, 

application  of  code  to,  474. 
JUSTICES  OF  THE  PEACE, 

how  appointed  in  reign  of  Edward  Third,  2. 

how  appointed  in  this  slaie  under  the  constitution  of  1777,  2. 

Jaws  in  relation  to,  of  1801,  1813,  and  1818,  2. 

so  far  as  relates  to  their  place  of  business,  town  officers,  2. 

must  reside  in  the  town  for  which  they  ate  chosen,  2. 

cannot  try  a  cause  in  any  other  town,  2. 

may  issue  process  any  where  in  the  county,  2. 

subpoena  only  process  in  civil  suits  to  be  operative  out  of  their  county,  2. 

office  not  vacated  in  consequence  of  the  increase  or  diminution  of  their 
territorial  jurisdiction,  3. 

number  of,  in  each  town,  3. 

manner  of  election  and  term  of  office,  3. 

how  removed,  3. 

becoming  tavern  keeper  after  election,  lose  jurisdiction,  3. 

interest  in  amount  recovered  disqualifies,  3. 

cannot  try  an  action  to  recover  a  penalty  given  to  the  town  in  which  they 
reside,  excepting  where  the  penalty  is  given  to  the  town  directly  in  its 
corporate  capacity,  3. 

what  relationship  of  parties  to  justice,  disqualifies  him,  4. 

how  far  the  forming  an  opinion  of  the  matter  in  controversy  disquali- 
fies the  justice,  4. 

absence  of,  on  return  or  adjourned  day,  operates  as  a  discontinuance  of 
the  suit,  75. 

how  must  decide  case,  165. 

when  may  dismiss  case,  with  costs  to  the  plaintiff,  without  hearing  de- 
fendant's proof,  167. 

decisions  upon  questions  of  fact  by,  when  absolute,  178. 

discretion  of,  as  to  the  order  in  which  proof  shall  be  received,  178. 

discretion  of,  in  admitting  testimony,  179. 

discretion  of,  in  re-examining  witnesses,  179,  180. 


LANDLORD  AND  TENANT, 

when  relation  exists,  385. 

nature  of  lease,  385. 

how  lease  created,  385. 

tenant's  right  to  underlet,  386. 

verbal  agreement  not  to  vary  written  lease,  386. 

leases  in  city  of  New  York,  386. 

agreement  for  a  lease  not  to  commence  within  a  year,  must  be  in  writing, 
386. 

contract  between,  how  effected,  386,  387,  388. 

lease  must  be  certain  as  to  time,  389. 

tenancy  at  will  and  at  sufferance,  389. 

when  tenant  is  deemed  to  occupy  from  year  to  year,  390. 

what  notice  must  be  given  to  put  an  end  to  tenancy  at  will  or  at  suffer- 
ance, 390. 

notice  to  end  tenancy  how  served,  390. 

when  landlord  may  re-enter,  390. 

how  far  landlord  bound  by  covenant  of  quiet  enjoyment,  390. 

tenant  excused  from  paying  rent  when  evicted,  391. 


682  INDEX. 

LANDLORD  AND  TEN A'NT— continued. 

to  what  extent  tenant  bound   to  repair,  391,  3i)2. 

what  tenant  may  remove  from  premises,  392. 

when  landlord  sells  properly,  privileges  of  purchaser,  392. 

proceedinors  to  remove  tenant  at  will,  or  at  sufferance,  394,  395,  396,  397, 
398,  399,  400. 

when  relation  between,  deemed  cancelled,  401. 

when  proceedings  against  tenant  stayed,  401,  407.  '' 

notice  to  pay  rent,  how  served,  403. 

how  tenant  may  controvert  affidavit  of  landlord,  403,  404. 

proceedings  in  removing  tenant,  401,  405,  406,  407,  408. 

landlord  may  recover  rent  of  tenant  removed,  406. 

how  proceedings  in  removal  of  tenant,  appealed,  408,  409. 

proceedings  where  premises  are  deserted  by  tenant,  40J,  410. 

proceedings  in  cases  of  forcible  entry  and  detainer   410,411,412,413, 
414,415,416. 
LEASE, 

nature  of,  385. 

how  created,  385. 

verbal  agreement  not  to  vary  written,  386. 

in  city  of  New  York,  386. 

agreement  for,  not  to  commence  within  a  year,  must  be  in  writing,  386. 

must  be  certain  as  to  time,  389. 

purchaser  of  property  has  all  the  benefits  of,  392. 

difference  between,  and  an  assignment,  392,  393. 

how  assigned,  393. 
LUNATICS, 

may  be  confined,  334. 

who  required  to  confine  and  maintain,  334. 

how  confined,  334,  335,  336. 

within  what  time  to  be  sent  to  asylum,  336. 

what  evidence  required  as  to  insanity,  337. 

what  will  warrant  admission  of,  into  asylum,  337. 

when  lunatic  may  appeal  from  order  to  send  liim  to  asylum,  337,  338. 

proceedings  where  justices  refuse  to  make  an  order  for  confinement,  338. 

what  superintendent  of  asylum  required  to  do,  338. 

rule  as  to  the  admission  of  indigent  insane  patients  into  asylum,  338,  339, 
340,  341. 

who  required  to  support  patient  in  asylum,  342. 

M 

MARINE  COURT, 

number  of  judges  of,  447. 

judges  of,  how  elected,  447. 

clerk  i)f,  how  appointed,  447. 

vacancies  of  judges  or  clerk,  how  supplied,  447. 

when  judges  and  clerk  of,  to  account  for  fees,  447. 

when  required  to  be  open,  448. 

duty  of  clerk  of.  448. 

wehn  application  made  to,  for  process, 448. 

process  of,  how  tested  and  signed,  448. 

power  of  constable  in  serving  process,  448. 

labors  and  duties  required  of  each  judge,  448. 

confessiim  of  defendant,  by  whom  taken  out  of  court,  449. 

what  deemed  legal  evidence  of  the  pri)ceedings  of,  449. 

jurisdiction  of,  in  kcf^jiing  the  peace,  449. 

jurisdiction  of,  in  taking  adid.ivit-s,  419. 

judgc.4  of,  how  removed,  449,  450. 


INDEX  683 

MARINE  C0\] RT—conlinued. 

clerk  of,  by  whom  suspended,  450. 

when  clerk  of,  removed,  whom  the  mayor  of  the  city  to  designate  to  sup- 
ply his  place,  450. 

civil  jurisdiction  of,  450,  451. 

marine  jurisdiction  of,  451,  452. 

fees  allowed  in,  452,  453,  454,  455. 

pleadings  in,  458,  459. 

appeal  from,  459. 

power  of,  in  naturalizing  foreigners,  455. 
MASTER  AND  SERVANT, 

relation  of  rests  on  contract,  269. 

what  implied,  as  between,  269,  270. 

when  performance  of  work   by  servant  condition  precedent   to  wages, 
270,  271. 

when  servant  loses  his  right  to  wages  for  the  time  he  has  served,  271, 
272. 

when  servant  may  be  dismissed  by  master  before  the  expiration  of  his 
term  of  service,  272. 

when  servant  dismissed,  what  will  prevent  his  recovering  waaes,  272. 

when  servant  may  recover  wages  pro  rata,  without  any  express  contract, 
272. 

when  master  bound  by  act  of  servant,  272,  273. 

when  master  and  servant  both  liable,  273,  274. 

when  master  liable  for  fraud  of  servant,  274. 

master  not  bound  to  provide  medical  attendance  for  servant,  274. 

servant  not  entitled  to  wages  when  discharged  for  misconduct,  42. 

when  master  abuses  servant,  the  latter  may  recover  for  services,  or  re- 
cover damages  for  breach  of  agreement,  42. 

what  treatment  of  master  will  justify  the  servant's  leaving  his  employ, 
42,  43. 

proceedings  where  servant  guilty  of  misdemeanor,  280,  281,  282,  283. 

proceedings  where  master  guiltv  of  cruelty  to  servant,  284,  285. 
MORTGAGE, 

how  far  change  of  possession  necessary  to  validity  of,  21. 

what   necessary  to  validity  of,  as  against  creditors  and  subsequent  pur- 
chasers and  mortgagees  in  good  faiih,  22. 

how  and  where  filed,  23. 

how  often  the  filing  of  to  be  renewed,  23. 

how  far  the  renewal  necessary,  23. 

at  what  time  the  title  of  the  mortgagee  becomes  absolute,  23. 

distinction  between  mortgage  and  pledge,  23. 

when  mortgage  debt  becomes  absolute  at  law,  23,  24. 

the  filing,  or  renewing,  not  necessary  as  between  parlies,  23. 

N 

NATURALIZATION, 

power  of  Marine  Court  in,  455. 

terms  upon  which  an  alien  can  be  naturalized,  455,  456,  457. 

proceedings  in,  457,  458. 
NOTARIES  PUBLIC, 

how  appointed,  and  for  how  long,  505. 

where  to  reside,  505. 

may  perform  duties  any  where  in  the  state,  505. 

number  appointed,  505. 

duties  of,  505.  506. 

what  evidence  of  presentment,  or  payment,  of  bill  or  note,  506. 

in  case  of  death  or  insanity  of,  what  evidence  of  acts,  506. 


684  INDEX 

NOTARIES  PUBLIC— continued. 
how  far  liable.  506. 
fees  of,  592. 

o 

OBSERVANCE  OF  SUNDAY, 

what  acts  constitute  violation  of,  358,  359. 

penalty  for  violating-,  359. 

what  statute  prohibits  from  exposing  to  sale  on  Sunday,  359. 

what   inn   keeper's  prohibited  from  selling  on  Sunday,  and  under  what 
penalty,  359. 

prosecution  how  instituted,  359. 

how  justice  is  to  proceed  to  inquire  into  the  facts,  360. 

what  done  when  the  offender  does  not  pay  penalty  and  costs,  361. 

proceedings  to  enforce  forfeiture  for  exposing  goods  for  sale  on  Sunday, 
362,  363. 

what  certificate  of  conviction  must  state,  and  within  what  time  filed,  363. 

law  ill  relation  to  transacting  business  of  court  on  Sunday,  363. 

privilege  of  person  who  keeps  Saturday,  363,  364. 
OFFICERS, 

fees  of  county  officers  to  be  paid  before  services  performed,  508. 

person  to  be  eligible  to  town  office  must  be  elector  of  town,  508. 

what  town  officers  chosen  by  ballot,  508. 

power  and  duties  of  justices  of  the  peace  in  appointing  town  officers, 
508,  509. 

how  long  town  officers  hold  their  offices,  510. 
OVERSEERS  OF  HIGHWAYS, 

number  chosen,  551. 

penalty  for  refusing  to  serve,  551. 

where  refuses  to  serve,  how  successor  appointed,  551,  552. 

penalty  for  neglect  of  duty,  552,  553,  554. 

powers  and  duties  of,  552,  553,  554. 

compensation  of,  595. 
OVERSEE KS  OF  THE  POOR, 

number  chosen,  555. 

powers  and  duties  of,  556,  557,  559,  560. 

compensation  of,  595. 


PARTIES, 

who  must  be  to  action,  5. 

cannot  confer  jurisdiction  by  their  own  acts,  2. 

when  town  ami  county  officers  parlies  to  action,  5. 

who  must  be  plaintifl's,  5. 

wlio  may  be  made  party  defendant,  5. 

who  iimst  be  joined  as  plaintiffs  or  defendants,  6. 

when    party,  who  should  have  been  joined  as  plaintiff,  may  be  made  a 

defendant,  6. 
what  parlies  to  bills  of  exchange  and  promissory  notes  included  in  same 

action,  6. 
when  married  woman  a  party,  how  she  must  sue,  6. 
the  filing  or  renewing  mortgage  not  necessary,  as  between  p;irties,  23. 
parties  may  institute  suits  by  voluntary  appearance  and  agreement,  52. 
when  parlies  may  demur,  89. 

when  rigiii  of  (lariies,  ri'spcclively,  to  address  justice  or  jury,  185. 
wliicli  parly  buiiis  up  first,  185. 


INDEX.  685 

PARTNERSHIP, 

definition  of,  15. 

to  legal  partnership  what  essential,  16. 
between  whom  it  may  exist,  16. 
the  two  leading  principles  of,  16. 
what  constitules  a  valid  partnership,  16. 

when  it  may  exist  as  to  others,  ihongh  not  as  between  the  parties,  17. 
what  constitutes  between  parlies,  17. 

obligation  of  partnership  engagement  implied  in  the  acts  of  the  parties,  17. 
how  far  members  of  liable  for  debts  of  firm,  17. 
how  far  acts  of  individual  members  bind  firm.  17. 

how  a   person  may  receive  part   of  the  profits  of  business,  without  be- 
coming a  responsible  partner,  17. 
how  a  limited  formed,  18. 
steps  requisite  in  forming  limited,  18. 
who  may  transact  the  business  of"  limited,  18. 
how  far  special  partner  may  act,  18. 
under  what  name  limited  partnership  conducted,  18. 
what  necessary  where  formed  for  purposes  of  transportation,  18,  19. 
PENALTY, 

given  by  statute,  how  sued  for,  49. 
PLEADING, 

definition  of,  80. 

general  aim  of,  80. 

what  must  be  staled  in,  80. 

matter  presumed   to  lie   more  within  the  knowledge  of  the  other  party, 

need  not  be  stated  in,  81. 
when  facts  constitute  condition  precedent,  must  be  stated,  81. 
fact  need  not  be  stated  when  law  presumes  it,  81. 
facts  must  be  stated  in  with  certainly,  81. 
in   construction   of  facts,  every  thing  taken  most  strongly  against  the 

party  pleading,  81. 
construction  of,  liberal,  82. 
in  pleading   performance   of  condition   precedent,  not  necessary  to  state 

facts  showing  such  performance,  82. 
in  pleading  judgment  not  necessary  to  state  facts  conferring  jurisdiction, 

82. 
in  pleading  private  statute,  sufficient  to  refer  to  its  title  and  day  of  pas- 
sage, 82. 
general  issue  permitted,  82. 

how  far  defendant  entitled  to  plead  after  expiration  of  the  hour,  83. 

hovY  far  defendant  entitled  to  plead  at  adjourned  day,  83. 

pleadings  verbal  or  written,  84. 

when  verbal,  must  be  entered  in  justice's  docket,  1,  84. 

when  written,  must  be  filed  by  justice,  1,  84. 

how  made,  when  verbal,  84. 

first  step  in,  85. 

of  what  complaint  should  consist,  85. 

how  complaint  made  when  verbal,  86. 

complaint  not  to  join  different  causes  of  action,  86. 

when  same  causes  of  action  joined,  86. 

time  and  place,  when  matter  of  form,  need  not  be  stated,  86. 

time  and  place,  when  material,  must  be  set  forth,  86. 

when  a  request  must  be  stated,  87. 

how  far  a  variance  will  affect  plaintiff's  right  to  recover,  87.3 

of  what  answer  shall  consist,  88. 

how  grounds  of  defence  stated  in  answer,  88,  89. 

definition  of  demurrer,  89. 

when  parties  may  demur,  89. 


INDEX. 

fLEATil'^G— continued.  .  ,  ^     ,         ,  ,     •  ,  •       ,     ^ 

when  plainuff  ignorant  of  name  of  defendant,  how  designated  in  plead- 
ing, 90. 
justice  required   to  disregard  errors  in  pleading  which  do  not  affect  the 

substantial  rights  of  the  adverse  party,  90. 
when  pleadings  may  be  amended,  91. 
POOR, 

how  relieved,  288. 

how  relieved  when  requiring  only  temporary  assistance,  or  cannot  be  re- 
moved, 289, 
how  relieved  in  counties  where  there  is  no  poor  house,  290. 
when  have  legal  settlement,  291. 
when  have  no  legal  settlement  in  county,  291. 
when  unable  to  work,  who  bound  to  support,  292. 
relief  of,  how  compelled,  292,  293. 
in  what  order,  relatives  liable  to  support,  294. 
when  relatives  only  required  to  contribute  a  portion  towards  support  of, 

294. 
payment  of  costs  and  expenses,  and  obedience  to  order  of  maintenance, 

how  enforced,  294. 
proceedintJS  where  father  or  mother  abscond,  leaving  family  chargeable  to 

public  for  support,  295,  296,  297,  298. 
with  what  powers  county  superintendents  vested  in  countie-s  that  support 
their  own  poor,  299. 
POUND  MASTERS, 

number  elected  in  each  town,  572. 
duties  of,  572. 

proceeds  of  impounding  beasts,  how  applied,  572. 
fees  of,  595. 
PROCESS, 

definition  of,  52. 

effect  of  stating  cause  of  action  in,  for  more  than  one  hundred  dollars,  8. 

when  issued  against  two  or  more  persons  jointly  indebted,  how  judgment 

rendered,  71. 
executed  by  officer  not  having  authority,  void,  71. 
when  constable  protected  in  service  of,  when  void  for  want  of  jurisdiction 

in  court,  72. 
issued  or  filled  up  on  Sunday,  void,  72. 

must  be  filled  up  at  the  lime  of  its  delivery  to  the  officer,  72. 
when  authority  given  by  justice  to  alter,  void,  and  when  valid,  72. 
irregularity  in,  how  waived,  73. 
who  justice  may  empower  to  execute,  and  how,  73. 
richts  and  liabilities  of  officer  in  executing,  74. 
PROFANE  CURSING  AND  SWEARING, 
penalty  for,  347. 

when  prosecution  for  maybe  instituted,  347. 
PUBLIC  STAGES, 

penalty  for  keeping  drunken  driver,  441. 

when  driver  must  be  discharged,  441. 

penalty  for  not  discharging  driver,  441. 

how  far  owners  of,  liable,  442. 

duties  of  proprietors  of,  wiih  regard  to  unclaimed  baggage,  442,  443. 

liabilities  of  proprietors  of,  as  common  carriers,  444,  445. 

a 

QUESTION  OF  TITLIO, 

justice  no  jurisdiction  of,  100. 

how  defendanl  can  avail  iiimsclf  of,  100, 107,  108. 


INDEX.  687 

QUESTIONS  OF  TITLE— conlinued. 

where  suit  discontinued   before  justice,  on   plea  of,  how  prosecuted  in 

higher  court,  108. 
what  clone  when  several  causes  of  actioPj  to  one  of  which  only  plea  of, 

interposed,  108. 

R 

ROADS, 

public  or  private,  not  to  be  laid  out  without  consent  of  owner,  427. 
must  be  certified  to  be  necessary  by  twelve  reputable  freeholders,  427. 
proceedings  in  laying  out  public  roads,  427,  428,  429,  430,  431,  432. 
appeal  to  decision  of  commissioners  laying  out   road,  how  taken  in  first 

instance,  433,  434,  435,  436. 
in  assessing  damages  for  laying  nut,  by  whom  costs  paid,  436,  437. 
damages  for  laying  out,  how  assessed,  437. 
fees  in  re-assessing  damages,  437. 


s 

SALE, 

when  void  as  against  creditors,  20. 

what   necessary  to  render  valid,  where  the  price  of  goods,  chattels,  or 
things  in  action  is  fifty  dollars  or  more,  20. 

what  will  render  note  or  memorandum  of,  valid,  20. 

what  deemed  memorandum  of,  at  auction,  20. 

how  far  change  of  possession  necessary  to  validity  of,  21. 

when  sale  under  execution  void,  22. 

what  implied  in  every  sale  of  personal  property,  24. 

when  seller  warrants  the  title,  24. 

when  party  buys  at  his  peril,  24. 

distinction  between  responsibility  of  seller  as  to  title,  and  as  to  quality  of 
things  sold,  24. 

when  representation  of  soundness  will  not  render  seller  liable,  24. 

by  accepting  an  inferior  article,  the  purchaser  waives  his  right  to  demand 
a  reduction  of  price,  25. 

what  purchaser  should  do  when  he  discovers  goods  unsound,  25. 

of  what  seller  would  be  guilty  in  deceiving  the  buyer,  even  as  to  open  de- 
fects, 25. 

when  action  will  lie  against  a  third  party  for  false  representation  to  seller, 
25. 

in  executory  agreements  to  sell  indeterminate  things,  what  sufficient  to 
defeat  sale,  27. 

what  amounts  to  evidence  of  sale  by  sample,  27. 
SEALER  OF  WEIGHTS  AND  Mb:A«URE6, 

one  for  every  town  and  county,  507. 

how  appointed,  507. 

duties  of,  507,  508. 

compensation  of,  592. 
SET  OFF, 

when  may  be  pleaded,  101. 

how  governed,  101. 

what  necessary  to  constitute,  102. 

when  subject  of,  must  exist,  102. 

rule  of,  where  there  are  several  defendants,  102. 

rule  of,  where  claim  founded  on  contract  is  assigned,  102,  103. 

rule  of,  as  regards  promissory  notes  and  bills  of  exchange,  103, 

when  defendant  precluded  from  pleading,  103. 


688  INDEX. 

SET  OFF— continued. 

how  pleaded  in  suits  brought  by  executors  and  administrators,  104. 

what  must  be  amount  of  claim  and  set  oti' to  bar  jurisdiction,  104. 
SCHOOL  DISTRICT, 
,       what  necessary  to  appear,  for  money  to  be  paid  to,  566. 

state  superintendent  may  direct  an  apportionment  to,  566,  567. 

who  may  form,  regulate  or  alter,  571. 

alteration  of,  when  to  take  effect,  570. 
SCHOOL  DISTRICT, 

may  expend  certain  sum  in  repair  of  school  house,  625. 

sum  how  raised,  6Q5. 

regulations  concerning  libraries  of,  625,  626,  627,  628. 

trustees  of,  how  divided,  609. 

what  notice  of  meeting,  must  state,  609. 

meeting  of,  when  held,  609. 

regulations  of  meeting  of,  609,  610. 

taxes  of,  how  assessed,  611. 

site  of  school  house  how  changed,  611. 

when  site  of  former  school  house  changed,  site  how  sold,  611,  612. 

certain  officers  of,  to  hold  their  offices  until  next  annual  meeting  after  ap- 
pointment, 612. 

vacancy  in  offices,  how  supplied,  612. 

penally  for  officers  of,  refusing  to  serve,  613, 

how  officer  of,  may  resign,  613. 

duty  of  clerk  of,  613. 

duty  of  trustees  of,  613,  614,  615. 

assessment  and  collection  of  taxes  of,  615,  616,  617,  618,  619,  620,  621. 

annual  reports  of  trustees  of  their  duties  and  liabilities,  622,  623,  624. 

formation  and  alteration  of,  605,  606,  607. 

of  the  powers  of  inhabitants  of,  and  of  the  choice  duties,  and  powers  of 
officers  of,  607,  608,  609. 
SHERIFF, 

how  and  when  elected,  476. 

can  hold  no  other  office,  and  ineligible  the  next  three  years,  476. 

required  to  give  security,  476. 

what  oath  required  to  be  taken  by  his  sureties,  467. 

when  required  to  renew  security,  477,  478. 

wlien  under  sheriff  appointed,  478. 

when  vacancy  occurs  in  office  of,  who  to  perform  the  duties,  478. 

who  liable  for  default  of  under  sheriff,  478. 

can  appoint  as  many  depuiies  as  he  pleases,  478. 

persons  deputed  by  sheriff  or  under  sheriff,  by  writing,  478. 

oath  required  to  be  taken  by  sheriff,  under  sheriff,  or  deputy,  478. 

within  wliat  time  oath  of,  must  be  taken  and  deposited  in  clerk's  office, 
479. 

penalty  for  omitting  to  take  oath,  and  give  required  security,  479. 

duties  of,  479. 

must  reside  in  county  for  which  elected,  479. 

duty  with  regard  to  keeping  office  open,  479. 

how  removed,  479. 

vacancy  in  office  of,  how  supplied,  479. 

fees  of,  5H2,  583,  584,  585,  586. 
STATUTE  OF  LIMITATIONS, 

within  what  time  an  action  upon  a  Fcaled  instrument,  or  on  a  judgment 
or  decree  of  any  court  in  tiio  United  States,  or  of  any  court  of  any 
Btate  or  territory,  to  be  cnnmienced,  98. 

what  actions  coiiiineiiccd  williin  six  years,  98. 

what  actions  coniniciiccd  witiiin  liiiee  years,  99. 

v\ii;it  actions  coiiimeiiccii  within  two  years,  99. 

actions  commenced  williin  one  year,  99. 


INDEX.  689 

STATUTE  OF  LIMITATIONS— conhnwerf. 

within  what  time  an  action  may  be  commenced  against  non-resident  of 

state,  100. 
what  disabilities  will  not  be  part  of  the  time  limited  for  commencement 

of  action,  100. 
when  plaintiff  an  alien  subject,  the  time  of  the  continuance  of  the  war, 

not  a  part  of  the  time  limited  for  commencing  action,  100. 
where  judgment  for  plaintiff  reversed  on  appeal,  within  what  time  new 

action  commenced,  100. 
rule  when  commencement  of  action  stayed  by  injunction,  100. 
when  a  person  can  avail  himself  of  a  disability,  100. 
how  acknowledgment,  or  new  promise,  revived,  101. 
SUBPCENA, 

definition  and  nature  of,  117. 
how  served,  119. 

how  witness  punished  for  disobeying,  120. 
fine  what,  and  how  imposed,  122,  123. 
to  whose  use  fine  paid,  124,  125. 
SUITS, 

when  abated  by  death,  256. 
SUMMONS, 

definition  of,  53. 

statement  of  cause  of  action  in,  53. 
effect  of  non-imprisonment  act  on,  63,  54. 
how  served,  54. 

time  of  service  and  return,  54. 
definition  of  long  summons,  54. 
short  summons,  54. 
when  long  summons  used,  54. 

when  non-resident  plaintiff  entitled  to  short  summons,  54. 
ste[)s  taken  by  non-resident  plaintiff  to  obtain  short  summons,  55,  56. 
when  short  summons  may  issue  of  course,  56. 

justice  may  sign  blank  summons,  to  be  filled  up  under  his  presence  and 
control,  72. 
SUPERINTENDENTS  OF  THE  POOR, 

number  elected  in  each  county,  and  how  often,  495. 

security  to  be  given  by,  495. 

powers  and  duties  of,  495,  496. 

support  of  poor  not  to  be  charged  to  county  without  their  sanction,  497. 

decisions  of,  in  relation  to  support  of  poor,  how  entered  and  filed,  498. 

when  to  render  to  county  treasurer  a  statement  of  the  sums  charged  to 

the  several  towns,  498,  499. 
required  to  present  an  estimate  each  year  lo  board  of  supervisors,  of  the 

sum  necessary  for  support  of  county  poor,  499. 
how  liable,  499. 

have  power  to  institute  proceedings  to  ascertain  the  father  of  a  bastard,  499. 
compensation  of,  591. 
SUPERVISOR, 

power  and  duty  of,  510,  511. 
how  special  meeting  of  called,  512. 
meetings  of,  how  held,  512. 
duty  of  clerk  of,  512. 

accounts  presented  to,  must  he  numbered,  512. 

account  of  moneys  collected  to  be  transmitted  by,  lo  county  treasurer,  532. 
accounts  of  to  be  made  out  in  items,  513. 
legislative  powers  of  board  of,  514,  515,  516,  517. 
penaty  for  refusing  to  perform  duties,  518. 
compensation  of,  592. 
SLRETY  FOR  THE  PEACE, 

definition  and  proceedings  in,  243,  244,  245,  246,  247. 

44 


690  INDEX. 

SURROGATE, 

when  to  be  elected,  485. 
power  of,  485,  486. 
security  given  by,  486. 

when  not  permitted  to  act  as  such,  or  as  attorney,  486. 
when  county  judge  to  act  as  surrogate,  486. 
how  paid,  487. 

local  officers  elected  to  act  for,  how  paid,  487. 
compensation  of,  589. 
SWAMPS  AND  MARSHES, 

proceedings  in  draining,  380,  381,  382,  383. 

T 

TENDER, 

consequences  of  regular  tender  and  refusal  of  goods,  where  the  articles 
will  subject  the  party  tendering  to  a  charge  in  order  to  keep  them,  97. 

when  debtor  discharged  by  tender,  97. 

duty  of  buyer  where  seller  refuses  to  accept  articles  sold,  97. 

in  tendering  specific  articles,  what  must  be  done,  97 

where  any  act  remains  to  be  done  by  purchaser,  to  prepare  goods  for  de- 
livery, the  property  in  them  does  not  pass,  97. 

where  no  place  is  designated,  articles  sold  to  be  delivered  at  the  place 
where  they  are  at  tiie  time  of  the  sale,  98. 

obligor's  duty,  where  contract  to  deliver  specific  articles,  98. 

when  defendant  may  make,  95. 

effect  of,  95. 

effect  of  paying  money  into  court  instead  of  making  tender,  95. 

made  by  agent,  good,  96. 

what  lawful  tender,  96. 

what  constitutes  a  good  tender,  96. 

what  necessary  with  regard  to  the  amount  of  the  sum  tendered,  96. 
TOWNS, 

empowered  to  make  rules  for  ascertaining  sufficiency  of  fences,  46. 

nature  and  powers  of,  599,  600. 

charges  of,  596,  597. 

meetings  of,  how  organized,  600,  601,  602,  603. 

mode  of  conducting  meetings  of,  603,  604. 

school  for  colored  children  may  be  established  in,  630. 
TOWN  AUDITORS, 

who  constitute  board  of,  573. 

when  and  where  required  to  meet,  573. 

duties  of,  573. 

what  necessary  before  an  account  can  be  audited,  573. 
TOWN  CLERK, 

required  to  take  the  oath  of  office,  518. 

powers  and  duties  of,  518,  519,  520,  521,  522,  523. 

copies  of  papers  filed  in  office  of,  and  transcripts  from  the  book  of  records, 
certified  by  him,  will  be  evidence,  518. 

compensation  of,  592. 
TOWN  SUPKIUN  PENDENTS  OF  COMMON  SCHOOLS, 

when  created,  561. 

how  elected,  501. 

when  ofiice  of  deemed  vacant,  564. 

vacancy  in  office  of,  how  filled,  564. 

required  to  give  security,  5(>4. 

wlien  to  enter  ii()()n  dmics  of,  5f)1. 

what  offices  disipialified  from  holding,  561. 

when  rcfiuircd  to  return  school  moneys  to  the  county  treasurer,  567. 

duties  of,  505,  507,  508,  569,  570,  571. 


INDEX.  691 

TOWN  SUPERINTENDENTS,  &c.— continued. 

penalty  for  neglect  of  duty,  568. 

penalty  how  applied,  569. 

when  successor  of  may  bring  sujt,  50!). 

powers  and  privileges  of,  570. 

compensation  of,  570. 

inspector  of  common  schools  in  his  town,  570. 

decision  of  special  meeting  of,  how  far  valid,  572. 

may  demand  and  sue  for  certain  moneys,  572. 

moneys  recovered  by,  against  defaulting  trustee,  to  be  applied  to  the  use 
and  benefit  of  district  school,  625. 

remedy  of,  to  recover  unpaid  balance  in  hands  of  delinquent  trustee,  625. 

compensation  of,  595. 

may  administer  oaths  in  certain  cases,  628. 

how  to  hold  office,  when  appointed  by  justices  of  the  peace,  628. 

how  removed,  628,  629. 

when  neglect  to  make  annual  report,  what  done,  629. 
TRIAL, 

definition  of,  165. 

first  step  in  preparation  of,  117. 

when  to  be  had  before  justice  alone,  165. 

what  will  assist  justice  at,  165,  166. 

of  what  trial  before  justice  alone  often  consists,  166. 

when  plaintiff  may  withdraw  suit,  167. 

defendant's   not   appearing  to  answer,  not  considered  an   admission   of 
plaintiff's  demand,  167. 

when  trial  by  jury  held,  167. 

who  to  open  and  state  case,  171,  172. 

what  party  opening  case  to  state,  172. 

how  trial  by  jury  waived,  after  the  issuing  of  venire,  135. 
TRUSTEES  OF  GOSPEL  AND  SCHOOL  LOTS, 

abolished,  563. 

by  whom  office  of  exercised,  563,  564. 

w 

WARRANT, 

definition  of,' 56. 

effect  of  non-imprisonment  act  upon,  57. 
in  what  cases  applicable,  57. 
what  proof  indispensable  to  the  issuing  of,  58. 
non-resident  plaintiflfto  obtain,  must  give  security,  60. 
what  security  required,  60. 
constable's  return  upon,  60. 
defendant  how  arrested  upon,  60. 

when  justice  who  issued  warrant  absent,  before  whom  cause  tried,  61. 
how  long  defendant  can  be  detained  on,  76. 
to  be  annexed  to  assessment  roll,  must  contain  what,  530,  531. 
WARRANTY, 

what  implies  warrant  of  title,  24. 

what  warranty  in  any  sale  of  personal  property,  24. 

when  seller  warrants  the  title,  24. 

distinction  between  implied  warranty  as  to  title,  and  as  to  quality  of  goods 

sold,  24. 
when  representation  of  soundness  does  not  amount  to,  24. 
false  assertion  of  value,  when  matter  of  opinion,  does  not  amount  to,  24, 
may  sue  in  case  of  breach  of,  without  returning  goods,  25. 
what  necessary  to  constitute,  26. 

measure  of  damages  upon  the  breach  of  warranty  of  a  horse,  26. 
warranty  in  executory  agreements  to  sell  undeterminate  things,  27. 


1 


692  INDEX, 

WARRANTY— cowhnwe^. 

when  articles  sold  by  sample,  how  far  warranted,  27. 

in  what  cases  an  obljoration  implied  without  any  express  stipnlation,  27. 

when  an  action  will  not  lie  on  a  parol  warranty,  27. 
WEIGHTS  AND  MEASURES, 

law  in  relation  lo,  248,  249,  250. 
WITNESS, 

how  procured,  117,  118. 

how  punished  for  disobeying  subpoena,  120. 

to  what  liable  for  disobedience,  122. 

method  of  examination  of,  172,  173. 

leading  questions  to,  not  permitted,  173. 

when  party  may  put  leading  questions  to,  173. 

who  must  swear  witness  on  trial  before  justice,  166. 

mode  of  swearing  witness,  166. 

what  objection  must  be  to,   142. 

who  cannot  be,  142. 

reason  for  excluding  husband  and  wife,  142. 

justice  before  whom  cause  is  tried  cannot  be,  142. 

person  not  prevented  by  religious  belief,  142. 

objections  to  competency  of,  what,  142. 

when  children  cannot  be,  142. 

persons  who  have  not  the  use  of  reason,  excluded,  143. 

when  deaf  and  dumb  persons  may  give  evidence  by  signs,  143. 

person  intoxicated  ought  not  to  testify,  143. 

felons  not  competent,  143. 

cannot  be  compelled  to  criminate  himself,  143. 

interest  does  not  exclude,  143.      Vide  Code,  398. 

proof  given,  to  impair  credit  of,  144. 

how  objection  made  to  competency  of,  144. 

when  party  to  suit  competent,  144. 

what  party  in  interest  may  prove,  144,  145. 

when   general   character  of  subscribing  witness  who  are  dead,  may  be 
inquired  into,  177. 

party  cannot  discredit  his  own  witness,  177. 

when  party  may  disprove  facts  stated  by  his  own  witness,  177. 

when  party  may  impeach  his  own  witness,  177. 

when  party  may  give  evidence  of  the  good  character  of  his  witness,  177, 
178. 

proceedings  against,  239,  240. 

when  parly  nov  eniiiled  to  benefit  of  testimony  when  witness  dies  after  be- 
ing examined,  173,  174. 

may  cross-examine  in  every  stage  of  cause,  174. 

when  may  be  repeatedly  exanjined,  174. 

what  question  cannot  be  compelled  to  answer,  174. 

what  use  can  be  made  by  witness  of  entry  or  memorandum  of  an  occur- 
rence, 174. 

when  opinion  of,  evidence,  175. 

liow  impeached,  175,  170. 

mode  of  examining  into  general  character  of,  176. 

of  weighing  testimony  of,  ISO. 

testimony  of,  when  reconciled,  160,  181, 

when  witnesses  swear  to  facts  directly  contradictory,  how  preponderance 
of  testimony  decided,  181,  182. 

credit  of,  adVuMed  by  rciationsiiip,  182. 

what  adds  to  or  detracts  from,  credit  of,  182,  183. 

how  interest  allects  credibility  o(",  18;}. 

what  will  liavo  weight  in  coiiiirming  testimony  of,  183. 

probability  of  story  lo  be  regarded  in  weighing  testimony  of,  183. 

manner  in  which  witness  relates  story  to  bo  taken  into  account,  184. 


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